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HomeMy WebLinkAboutLee 01-09-26 IN THE MATTER OF AN ARBITRATION BETWEEN: ARAMARK CANADA LTD. - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 549 GRIEVANCE OF HAl JIN LEE JANE H. DEVLIN SOLE ARBITRATOR APPEARANCES FOR THE EMPLOYER: BRIANE DOHERTY MICHELLE PORTEOUS LISA MITCHELL APPEARANCES FOR THE UNION: JOHN BREWIN HAl JIN LEE 1 In this case the Grievor, Hal Jin Lee, claims that she was improperly denied holiday pay for Christmas Day and Boxing Day, 2000. The parties proceeded by way of an Agreed Statement of Fact, which provides as follows: 1. The grievance is attached at Exhibit 1. 2. The Grievor has been employed as a General Helper with the Employer (and its predecessor) since February 22, 1994. 3. As of Friday, December 22, 2000 she had only taken one day's leave (for tonsilitis) and that was in 1995. 4. The regular scheduled shifts for the Grievor included Friday, December 22 commencing at 9 a.m. and finishing at 5 p.m. Her next regularly scheduled shift was Wednesday December 27. 5. At about 7 a.m. on Oecember 22 the Griever phoned the workplace and advised that she was sick and could not report for work that day. The staff person who answered the phone accepted her message and said that her manager would be advised. No one from the company called her back and she assumed she had permission not to report for work. 6. The usual practice for an employee to book off sick is to phone in advance of the employee's scheduled start time and advise the company that she/he is unable to report to work because of illness. Normally this is accepted without further question by the Employer. 7. During the day of December 22 the Grievor attended on her doctor and was diagnosed with tonsilitis for which medication was prescribed. The Grievor was unable to work on December 22 because of her illness. 8. The doctor provided her with a note, indicating that she was indeed ill and could not report to work that day. Although not required to do so by the Employer, the Grievor submitted the note to the Employer at the earliest opportunity (Wednesday December 27). 2 9. Monday December 25 and Tuesday December 26 were statutory holidays under the collective agreement (Article 15.01). 10. Based on its interpretation of Article 15.02, the employer paid her for December 22 but did not pay her for December 25 and 26. The grievance was filed on January 16,2001, upon the Grievor becoming aware she was not being paid for the two statutory holidays. It wa~ also agreed that the Grievor worked her full shift on December 21 st. The relevant provisions of the collective agreement are as follows: ARTICLE 15 M HOLIDAYS 15.01 The following shall be observed as paid holidays: New Year's Day Good Friday Victoria Day Canada Day Labour Day Thanksgiving Day Christmas Day Boxing Day 15.02 Each employee who has completed their probationary period and who is not required to work on a paid holiday shall receive a normal day's payment at his regular straight-time hourly rate for the holidays, subject to the following conditions: i) the employee must work their complete scheduled shift on the day before the holiday, and their complete scheduled shift on the day following the holiday; ii) the employee must earn wages on at least twelve (12) days during the four (4) work weeks before the holiday. 15.03 An employee who is eligible for holiday pay in accordance with the above conditions and who is required to work on any of the said paid holidays, shall receive pay at time and one half (1 %) his regular straighHime hourly rate for the hours worked on the holiday, in addition to his holiday pay, 15.04 An employee who is not eligible for holiday pay in accordance with the above, who is required to work on any of the paid holidays shall receive pay at time and 3 one half (1 %) his regular straight-time hourly rate for the hours worked on the holiday. 15.06 An employee who has agreed to work the paid holiday who does not report for and perform the work will not receive the holiday pay, unless he has reasonable cause. Should the cause be illness and the Employer suspects abuse, a medical certificate may be requested by the Employer. Article 20 - Sick Leave 20.03 An employee unable to report for work due to sickness or other justifiable reason shall notify his immediate supervisor as early as possible and in any event not later than: ii) for employees whose shift begins after 8:00 a,m" three (3) hours prior to the commencement of the shift he was due to report for; Reference was also made to the following provisions of the Human Rights Code and the Labour Relations Act: Human Rights Code PART I - FREEDOM FROM DISCRIMINATION 5.(1) Employment - Every person has the right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or handicap. PART n -INTERPRETATION AND APPLICATION 10.(1) Definitions - In Part I and this Part, "because of handicap" means for the reason that a person has or has had or is believed to have or have had, (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of 4 paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device, (b) a condition of mental retardation or impairment, (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, (d) a mental disorder, or (e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1977; Labour Relations Act 48.(12) Powers of arbitrators, chair of arbitration boards, and arbitration boards - An arbitrator or chair of an arbitration board as the case may be, has power, U) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement. It was the submission of Mr. Brewin, on behalf of the Union, that holiday pay is an earned benefit which forms part of the total compensation package. Mr. Brewin further submitted that there is a presumption in favour of an employee's entitlement to hollday pay and that this benefit should be denied only jf there is clear language in the collective agreement which dictates that result. Moreover, Mr. Brewin maintained that in Article 15.02(i), the parties have included a requirement that an employee work his or her complete shift preceding and following the holiday in order to / 5 deter unjustified absenteeism. Mr. Brewin also noted that the Article refers to the shift scheduled for the individual employee, rather than to shifts scheduled for employees generally. In this case, as the Grievor was absent due to illness on December 22nd, Mr. Brewin submitted that the requirement set out in Article 15.02(i) has no application. He also suggested that the Grievor's attendance record was exemplary and that, in the past, she had clearly attended work on the qualifying days. Moreover, as the Grievor notified the Employer in advance of her shift on December 22nd that she was ill, it was contended that she was excused from attending work and, therefore, could not be considered to have been scheduled that day. In the result, Mr. Brewin submitted that the Grievor satisfied the requirements of Article 15 and, accordingly, was entitled to holiday pay for Christmas Day and Boxing Day. In the alternative, it was contended that as the Grievor was ill on December 22nd, the denial of holiday pay would constitute discrimination on the grounds of handicap, contrary to the Human Rights Code. It was the submission of Mr. Doherty, on behalf of the Employer, that although holiday pay is an earned benefit and ought to be denied only on the basis on the clear language, such language appears in the collective agreement in this case. In this regard, Mr. Doherty pointed out that Article 15.02 provides that entitlement to holiday pay is conditional on an employee working his or her scheduled shift 6 immediately preceding and following the holiday. Mr. Doherty further contended that although the Grievor notified the Employer two hours prior to the commencement of her shift on December 22nd that she was ill, she did not work that day and, therefore, did not satisfy the condition set out in Article 15.02(i). Moreover, it was submitted that the language of that Article can be contrasted with the language of Article 15.06, which provides that an employee who has agreed to work on a paid holiday and fails to perform the work is disentitled to holiday pay unless there is reasonable cause for the employee's absence. No such language appears in Article 15.02(i) and Mr. Doherty maintained that any exception to the requirement that an employee work his full shift on the qualifying days provided for in Article 15,02(i) must be negotiated between the parties. Mr. Doherty further contended that the agreement in this case is a first collective agreement and that the language of Article 15.02(i) mirrors that contained in the Employment Standards Act. It was submitted that under that legislation, there is no entitlement to pay for a public holiday if an employee is absent due to illness on one of the qualifying days unless approval for the absence was obtained in advance so that the day in question is no longer a scheduled work day. Moreover, Mr. Doherty contended that there is no basis upon which to find that the collective agreement contravenes the Human Rights Code and that to uphold this aspect of the Union's argument, I would have to find that the provisions of the EmQlQymentStandards Act also contravene the Code. 7 By way of reply, Mr. Brewin contended that in circumstances where an employee is absent due to illness, the Employer must be deemed to have authorized the absence, in which case, the employee is no longer scheduled to work that day. Mr. Brewin further contended that the fact that Article 15.02(i) does not refer to an absence for which there is "reasonable cause" is not determinative and that the Employer failed to negotiate clear language which would deprive an employee, such as the Grievor, of holiday pay. Moreover, Mr. Brewin maintained that the language of Article 15.02(i) can be distinguished from that in the Employment Standards Act, which provides that the section dealing with holiday pay does not apply to an employee who fails to work his or her scheduled "regular" day of work preceding or following the holiday. The issue to be decided is whether the Grievor is entitled to holiday pay for Christmas Day and Boxing Day, which are two of the holidays listed in Article 15.01 of the collective agreement. In this regard, Article 15.02 provides that an employee who has completed his or her probationary period and is not required to work on a paid holiday shall receive one day's pay at his or her straight time hourly rate for the holidays listed in Article 15.01, subject to two conditions. Firstly, as provided in Article 15.02(i), the employee must work his or her complete scheduled shift on the day preceding and the day following the holiday. Secondly, Article 15.02(ii) provides that an employee must earn wages on at feast 12 days during the four weeks irnrnediately 8 prior to the holiday and there was no suggestion that the Grievor did not satisfy this latter condition. Article 15 also deals with employees who work on paid holidays and, in this regard, Article 15.06 provides that an employee who has agreed to work on a paid holiday and does not report and periorm the work, will not receive holiday pay unless he has reasonable cause for the absence. In this case, the Grievor's last scheduled shift prior to Christmas Day and Boxing Day extended from 9:00 a.m. to 5:00 p.m. on Friday, December 22nd. However, at approximately 7:00 a.m. that day, the Grievor telephoned the Employer to indicate that she was ill and could not attend work. Although Article 20,03 specifies that an employee whose shift is scheduled to begin after 8:00 a.m. is to provide the Employer with three hours' notice of an absence due to illness, no issue was taken with the extent of the notice provided by the Grievor. There was also no dispute that the Grievor was genuinely ill on the day in question and she was paid for that day. In dealing with claims for holiday pay, Arbitrators have recognized certain generally-accepted principles, which are set out in Re Galco Food Products Ltd. and Allied Food Workers (1978), 18 L.A.C.(2d) 220 (Beck) and cited with approval in numerous other awards. These principles are described in Galco as follows: In the first place, the arbitral jurisprudence is clear that holiday pay is considered to be an earned benefit and as such is part of the total wage package negotiated at the bargaining table. It follows that as an earned benefit it ought not to be taken away unless very clear wording of the collective agreernent, along wiU'} the 9 facts of the particular case, require it. Thus it is my view that there may be said to be a presumption in favour of an employee with respect to the entitlement to holiday pay. The holiday pay provision in almost all collective agreements is usually qualified by words that require attendance by the employee on the working day prior to the holiday and the working day immediately following the holiday. The reason for such a well-known provision is to deter absenteeism by preventing what is known as "holiday stretching". In other words, employers, quite properly, object to granting holiday pay to employees who "stretch" a holiday into an absence from work for two or three more days. Hence the qualifying words which take away the earned benefit from such employees who abuse the holiday pay provision. In my view, the principles set out in the Galco award provide an appropriate framework. within which to consider a claim for holiday pay. However, the claim in each case must be determined based on the language of the particular collective agreement. As indicated previously, in this case, Article 15.02(i) provides that holiday pay is conditional on an employee working his or her complete scheduled shift on the day preceding and the day following the holiday. There is no exception to this requirement in the event of an absence due to illness or another legitimate reason. In this respect, therefore, the language of Article 15.02(i) can be contrasted with that of Article 15.06, which deals with employees who agree to work on a paid holiday. That Article provides that an employee who fails to report and perform the work is not entitled to holiday pay unless he has reasonable cause for the absence. 10 Moreover, there was no dispute that the Grievor was scheduled to work on Friday, December 22nd and although she notified the Employer two hours in advance of her shift that she was ill and could not report for work, in my view, that notification was not sufficient to alter her scheduled shift. In this regard, an employee's "scheduled shift" is generally understood to refer to the employee's hours of work set out on the schedule established by the Employer. Moreover, although in Fording Coal Ltd v. United Steelworkers of America. Local 7884 [1995] 8.C.C.A.A.A. No. 273 (Larson), the Arbitrator suggested where an employee is ill and excused from attending work, the schedule does not apply to him, there was no indication that the Arbitrator was considering the case of an employee who notified the Employer a few hours in advance of a scheduled shift that he or she was unable to report for work that day. The statement was also by way of obiter as the case involved claims for holiday pay by employees following the conclusion of a strike. As well, the collective agreement contained a number of exceptions to the requirement to attend work on the qualifying days. In this case, there was no indication of any change in the Grievor's work schedule prior to December 22nd and based on the Agreed Statement of Fact, I find that she was unable to work her scheduled shift that day due to illness. Moreover, as distinct from Article 15.06, Article 15.02(i) contains no exception to the requirement that an employee work his or her complete scheduled shift preceding and following the holiday. Accordingly, in the absence of such an exception, I arn cornpelled to corlclude 11 that as the Grievor did not work on Friday, December 22, 2000, she failed to satisfy one of the conditions for entitlement to holiday pay for Christmas Day and Boxing Day. As to the other awards relied on by the Union, a number of those awards are distinguishable as they involved collective agreements which contained exceptions to the requirement to work on the qualifying days in circumstances where, for example, an employee was absent due to illness or accident. Although no exception was contained in the collective agreement in MCR Ontario Inc. and Communications, Energy and Paperworkers Union. Local 672 [2000] O.L.A.A. No. 286 (Crljenica), in that case, the issue turned on whether the collective agreement required the Grievors to work the last shift for which they were scheduled prior to the holidays or whether they were required to work on the last work day or, in other words, the last day of the Company's operation prior to the holidays. In this case, there is no dispute that the collective agreement refers to the scheduled shift of the individual employee. Finally, in Canadian Union of Operating Engineers and General Workers and Baffin Inc. [2000] O.L.A.A. No. 302 (Novick), the collective agreement provided that in order to qualify for holiday pay, an employee was required to work the full regularly scheduled day of work immediately preceding and following the holiday. In that case, therefore, the agreement referred to the work day of employees generally rather than to the shift scheduled for the individual employee. Nevertheless, in dismissing the grievance, the Arbitrator found it significant that there was no exception to the requirement to attend work on the qualifying days. In U'ds regard, the Arbitrator cornmented as follows: 12 While I do not presume to know the intentions of the parties regarding the issue, I would go so far as to say that given the frequency with which exceptions to the eligibility requirements for holiday pay in cases of illness appear in other collective agreements, the fact that no such language appears in this one indicates an underlying acknowledgement or intention by the parties that the requirements will be applied without exception. It would have been simple for the parties to have excepted absences due to illness, as many other agreements do, but they have, for reasons that are best known to themselves, chosen not to. If they had included any exceptions to the requirement to work both the day preceding and following statutory holidays which even implied that non-culpable absence would not disqualify an employee from receiving holiday pay, I would be prepared to approach this in the manner that the Union urges me to, given the arbitral authority presented and the particular circumstances of this grievance. However, in the absence of any exceptions appearing in Article 19.02, I am constrained by the clear language of that provision to find that Ms. Vujic is not entitled to holiday pay for the three days in question as a result of her absence on January 3. Similarly, in this case, there is no exception to the requirement that an employee work his or her complete scheduled shift preceding and following the holiday and I would be amending the language of the agreement were I to find that the condition set out in Article 15.02(i) does not apply in the event of an absence due to illness. As to the Union's alternative argument, section 5(1) of the Human Rights Code prohibits discrimination with respect to employment on certain enumerated grounds, one of which is "handicap". Although this term is not defined in the Code, a number of disabilities or infirmities are particularized in section 10(1). While those disabilities are clearly not intended to be exhaustive, nevertheless, given the nature of the disabilities set out in that section, I cannot conclude that the term handicap applies to tonsillitis from which Grievor was suffering on Oecember 22nd and had recovered 13 sufficiently to return to work on her next scheduled shift on December 27th. Moreover, although strictly speaking, it is unnecessary to make any finding in this regard, I note that in a number of cases, it has been held that in matters involving compensation, it is not contrary to the Code to distinguish among employees based on their attendance at work. In the result, for the reasons set out, the grievance of Hai Jin Lee must be dismissed. DATED AT TORONTO, this 26th day of September, 2001. ~Clu./~ \A ~L . Sole Arbitrator