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HomeMy WebLinkAboutMorton 02-12-13 IN THE MATTER OF AN ARBITRATION BETWEEN: PATHWAYS FOR CHILDREN AND YOUTH (the "Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 460 the "Union") AND IN THE MATTER OF THE GRIEVANCE OF STEPHEN MORTON DATED OCTOBER 18.01 RE ART. 16.04 - PERSONAL LEAVE OPSEU FILE - #01-460-283 AWARD PAULA KNOPF - SOLE ARBITRATOR APPERANCES For the Employer , Deanna Morash, Counsel Joanna Maltby For the Union Peggy Smith, Counsel Conliss Finlayson, Chief Steward Hearing of this matter was held in Kingston, Ontario on December 2,2002 The grievor'sscheduled vacation was interrupted by a family . emergency. He had to spend one day attending to his wife after she suffered an accident at work requiring medical treatment. The next day the grievor asked the Employer if the day he h.ad spent attending to his wife could be converted from a vacation day into a personal leave day. The Employer considered the matter and ultimately advised the grievor that it was taking the P?sition that the collective agreement did not allow for such a conversion. As a result, this grievance was launched seeking recognition of the day as a personal leave day, rather than as a vacation day. The remedy being requested is that an additional day be added to the grievor's vacation bank. This is a pure contract interpretation case. The case does not involve any allegations of unfair treatment or improper exercise of discretion in denying the personal leave day. Further, there is no issue between the parties about the fact that the circumstances facing the grievor on that particular day were appropriate for a personal leave day. The parties are simply seeking a ruling to determine whether a vacation day can be converted into a personal leave day under circumstances such as these. The relevant provisions of the collective agreement are as follows: 16.04 Personal Leave Personal Leave - An employee is eligible for up to four (4) days per calendar year for leave without loss of pay, seniority or benefits to take care of family members, personal emergencies or family emergencies. An employee is to apply in advance for such leave whenever possible. This leave will be prorated for part-time employees.. 16.06 Bereavement Leave An employee who would otherwise have been at work shall be entitled up to three (3) days' absence with pay in all cases of genuine bereavement. If the employee requires additional time off, the Employee may arrange for vacation, 2 lieu time or leave without pay with the Employee's supervisor. 16.07 Jury Duty and Witness Leave (c) An employee, who would otherwise have been working, who is subpoenaed as a witness in legal proceedings outside the scope of their employment with Pathways shall have their salary and benefits maintained provided that the employee does not have a familial relationship with the party to the proceeding, give the employer prompt notice and proof of service and remit to the employer any payment received for such service. ARTICLE 23 - V ACA TJONS Annual Vacation 23.01 Full time employees shall earn vacation credits as follows: (a) One point two five (1.25) days per month during the first three (3) years of continuous service; (b) One point six seven (1.67) days per month after three (3) years of continuous service; (c) Two point zero eight (2.08) days per month after nine (9) years of continuous service; (d) Two point five (2.5) days per month after sixteen (16) years of continuous service. 23.09 In the event an employee is seriously injured or hospitalized during the vacation period, provided the employee qualifies for short term disability benefits, the period of confinement during the serious injury or hospitalization may be taken as sick time in place of the employee's vacation time after the employee provides proof satisfactory to the Employer of such serious injury or hospitalization 23,11 After an employee experiences a bereavement during the vacation period, up to three days of the scheduled vacation may be taken as bereavement leave under article 16.06. 3 The Submissions of the Parties The Union began its argument by properly conceding that where an employee is seeking conversion of vacation leave to another form of leave, it is the language of the collective agreement that governs the situation. The Union suggests that the appropriate approach is to look to see whether the ~mployee is trying to "pyramid benefits" or whether the rights to two different kinds of leaves co- exist in t~e collective agreement. The Union argues that the collective agreement between these parties creates a positive right to the personal leave in addition to vacations and that a "positive reading" should be given to the contract. Turning to Article 16.04, counsel for the Union argues that the only restriction placed on personal leave is that it be utilized for the reasons contained in the article. In contrast, counsel for the Union argues that clauses such as 16.06 and 16.07(c) contain language that means that the leave is only granted where an employee "would otherwise have been at work." The absence of such language in Art]cle 16.04 is said to create an unconditional right to personal leave. The Union acknowledges that there are two streams of case law applicable to situations such as this, one taking the lIpurposive" approach and the other taking the lIpositive" approach. It is suggested that the two lines of cases parallel the different kinds of language that can be found in Article 16.04 as opposed to Articles 16.06 and 16.07(c). These cases lead the Union to point out that an employee in this work place would not have been able to convert vacation leave to bereavement leave because that leave provision contains the condition of "otherwise [being] at work." The parties then overcame this result by including Article 23.11 to allow the conversion. In contrast, it is argued that language similar to Article 23,11 is 4 not necessary for Article 16.04 because of the condition of "otherwise being at work" is not in the personal leave article. The Union argues that Article 16.04 creates unconditional and additional rights to the earned rights to vacation. It is stressed that vacation is earned as a result of service and that the parties have negotiated additional personal leave days into the collective agreement beyond the vacation entitlement. Accordingly, it was argued that there would be no "pyramiding of benefits" in that the collective agreement recognizes two distinct types of leave and entitlement. The . Union urged the arbitrator to adopt the positive approach analysis taken in the following cases: Canadian Airlines International and lAM Lodge 7211 20 L.AC. (4Ih) 425 (Munroe), Calgary Roman Catholic School District NO.1 and CUPW, Local 520, 3 L.AC. (4Ih) 385 (A Ponac) and Whitby Hydro Electric Commission and Power Workers Union, 67 L.A.C. (4Ih) 20 (S.L. Stewart). In response to the Union's submissions, the Employer argues that there has been no violation of the collective agreement. The Employer takes the position that an employee's absence from work must be characterized from the point of commencement of that absence as the "fundamental reason for the absence." The Employer also argues that this "fundamental reason" cannot be altered during the term of the absence unless something in the collective agreement allows for a specific event to trigger conversion of the leave. The Employer emphasizes that the provisions of Articles 23.09 and 23.11 specify when an employee can convert vacation to a different type of leave. The absence of such a provision for the personal leave situation was said to be determinative of the fact that vacation cannot be converted into personal leave. Therefore, the Employer argues that the grievor's absence was characterized as vacation because this was the initial reason for the leave. Regardless of subsequent 5 events, it was said that the nature of the leave could not be changed. It was conceded that events can happen that pre-empt or entitle an employee to another type of leave. However, it was said that there is no provision in this collective agreement for such a conversion with respect to personal leave. In addition, it was argued that the words "without loss of pay" in Article 16.04 indicate that the personal leave is not an "independent" or positive right. Instead, it was argued that the personal leave provision is a "qualified entitlement" creating "an indemnity against loss of income" which is only payable to the extent that an employee suffers a loss of income. T.he Employer argues that the personal leave provision in this collective agreement is available only where an employee would suffer a loss of income. Therefore, because the grievor had income protection during his paid vacation, it was said that he was not entitled to the personal leave benefits in the collective agreement. In support of its arguments, the Employer cited the following cases: Canadian Steelworkers' Union and Atlas Steels Co (1972), 24 L.A.C. 171 (Weatherill) , Public Utifities Commission of City of Scarborough and Utility lIVorkers of Canada, Local 1, Unit 1 (1989),6 L.A.C. (4TH) 170 (Jolliffe), VME Equipment of Canada Lid. and Canadian Automobile Workers, Local 1917(1990), 10 L.AC. (4th) 348 (Hinnegan), Alberta (Family & Social SeIVices) and AUP,E, (Holley) (1990), 15 L.A.C. (4TH) 68 (Fetridge)! Unisource Canada Inc. and Communications, Energy & Paperworkers Union of Canada, Local 1124'(1 995), 47 L.AC. (4lh) 435 (Blasina) and Northern Alberta Institute of Technology v. NAIT Academic Staff Association (Roy Grievance)! [2001] AG.AA No. 52 Counsel for the Employer concluded her submissions by stressing that the Employer recognizes that the grievor was put into an unfortunate situation during his vacation. Sympathy was expressed for the grievor and his family under the 6 circumstances. However, the Employer is taking the position that under the terms of the collective agreement it is not required to insure against the interruption of an employee's holiday. By way ofreply, the Union acknowledged the case law which follows the "fundamental reason for absence" analysis. ~owever, it was stressed that even this jurisprudence recognizes that an exception is created where an event happens during the course of the vacation that allows the absence to be recharacterized. In response to the Employer's argument that "without loss of pay" means that the personallea~e provision is an indemnification clause, the Union argues that the words "without loss of pay" in the article simply differentiate this type of leave from the other leaves which are without pay such as education leave or general leaves of absence. In seeking to understand the implication of the Union's argument, this arbitrator asked Union counsel whether the Union's position could mean that an emergency arising on a Saturday would entitle an employee to claim additional personal leave time during working hours. The Union's response to this question was to specify that it is seeking to convert the earned right of vacation to a personal leave day. It was said that this was different than seeking to convert a weekend period because a weekend is not an earned entitlement to an absence. Therefore-it was stressed that a favourable decision in this case would have no implications beyond the earned vacation and personal leave articles. In response to this exchange, the Employer argued that while vacation may be an earned right, personal leave is not an earned right. 7 The Decision The case law cited by counsel for both parties is relevant and applicable to the situation. This award makes no attempt to reiterate the analysis contained therein or to reconcile the authorities. One line of authorities looks at the fundamental reasons for the absences and would not allow the original reason to be converted to another purpose unless it is specifically authorized by the collective agreement. This is the line of authorities cited by the Employer. Another line of case law adapts the "positive rights analysis" and recognizes that specific leaves in the collective agreement, such as bereavement leave and vacationl represent separate and distinct circumstances. These are the cases cited by the Union. A third line of cases, acknowledged in the Union's cases, adopts the purposive rights approach, looking to the purpose of vacation and other leaves. This approach concludes that if the purpose of having time off is to deal with circumstances such as bereavement, that purpose is served when the employee is on vacation. Accordingly those cases conclude that it is unnecessary to provide any further benefit or leave. All these cases are based on the particular language of the collective agreements being examined. There is sound reasoning to all these approaches. Employees do not want to become unwilling insurers of carefree vacation time. So too, Unions want to clarify rights in collective agreements so employees know their entitlement in times of family crises. All the cases recognize that the rights and responsibilities of the parties are governed by the specific words in the collective agreement. Accordingly, it is not surprising that the different lines of authority follow the different types of language parties have adopted in their collective agreements. Therefore, it is impossible and inappropriate to say that vacation can or cannot ever be converted into another kind of leave provision. Some collective agreements will allow for this and others will not. The question is what does the collective agreement provide? 8 Both parties to this dispute acknowledge that vacation is an earned benefit under this collective agreement in Article 23.01. The collective agreement also provides for a number of leaves of absence. Some are with pay and some are without. Some leaves are conditional. The bereavement leave and witness leave entitlements are triggered by absences on when an employee "would otherwise have been at work" or "working". Therefore, these leaves would clearly not be accessible to employees on vacation because they would not have been "at work" when other duties called. However, Articles 23.09 and 23.11 forestall that result in the case of bereavement leave or serious injury by allowing an employee to convert hislher vacation to bereavement leave or access the benefits of short term and long term disability. By negotiating the provisions in Articles 23.09 and 23.11, the parties have adapted language that is consistent with the approach outlined in the decision of Northern Alberta Institute of Technology and NAIT Academic Staff Association, supra, at paragraph 70: The jurisprudence recognizes an exception to the "fundamental reason for absence" test where an event happens during vacation which would otherwise peremptorily entitle - and the emphasis is on entitle - the employee to another kind of leave. In some cases, bereavement leaves sometimes fit into this category, at least to the extent that the wording of a particular collective agreement provides a entitlement tq x days of leave on the death of a particular person. Because such a leave is peremptory on the happening of the given event, and is not conditioned on anything else, arbitrators have generally held that the employee is entitled to interrupt the vacation leave in order to take this type of bereavement leave. However, the reasoning in this line of cases depends squarely on the wording of the particular clause creating an entitlement to the bereavement leave which is peremptory, separate and apart from any other entitlement of the employee. By contrast, the rationale for the bereavement leave exception does not apply to a n entitlement if there is some unfulfilled qualification for that entitlement. For 9 example, if the "entitlement" is only payable to the extent that the employee has suffered a loss of income, the entitlement does not arise if the employee has not in fact suffered a loss of income. As recognized in the citation above, the parties to this collective agreement have specifically provided for entitlement to bereavement leave whether there has been a loss of income or not. Is there similar recognition or right for personal leave? The Employer has the strong argument that the absence of language such as found in 23.09 and 23.11 might indicate a lack of mutual intention to allow an employee on vacation to convert that time into personal leave. If the language of Article 16.04 was the same as 15.06, the Employer's argument would succeed. However, the personal leave article 16.04 is fundamentally different from the provisions in Article 16.06. Bereavement leave is provided to an employee "who would otherwise have been at work." Personal leave is not conditiol')al on an employee "otherwise being at work." There is no such qualification in Article 16.04. The personal leave provision in this contract is peremptory only on the happening of the kind of events specified in the article. It is not conditioned on anything else. Therefore, as the citation above reveals, this is the kind of clause that arbitrators have generally found to entitle an employee to interrupt the vacation leave in order to take the other type of leave. In the facts of this grievance, the employee was on vacation. Vacation is recognized as an earned right, accruing from service. Personal leave is also a positive right which is not conditional on anything other than the three listed reasons for its purpose. It is available to employees "to take care of family members, personal emergencies or other family emergencies." There are no other conditions in the clause. Therefore, personal leave must be recognized as a "positive right" which is not conditional on anything other than the three listed reasons for its purpose. 10 This collective agreement is different than others that create leave rights and ensure continuance of income for periods only when there would otherwise be discontinuation of income because of absences such as in Alberta (Family and Social Services) and A.U.P.E. (Holly)} supra. However, Article 16.04, when read with the collective agreement as a whole, must be recognized not as a continuance of income provision. Rather, it is an additional benefit conferred together with vacation and other benefits under the collective agreement. The collective agreement in this case is analogous to the collective agreement in the Canadian Airlines International Ltd. case, supra. The analysis in that case is helpful at page 433. First of all, vacation is an earned benefit to which the employee becomes entitled by virtue of his work or service with the employer. As an earned benefit, it is not a leave of absence in the usual sense of that phase -le., where a circumstance arises which excuses the employee from the otherwise existing obligation to be at work. . Thus, it is not pertinent to speak of piling one leave on top of another. It truly is a matter of the employee's utilization of an earned benefit being interrupted by an event in ,respect of which the collective agreement quite independently, confers a positive right or entitlement without any words of limitation, express or implied. When the situation is looked at in that light, there is nothing either odd or duplicitous about a paid compassionate leave of absence being granted to an employee who is on vacation at the time the event giving rise to the compassionate leave occurs Personal leave in this collective agreement is a positi8ve right that the parties have negotiated. The need for it may arise during an earned vacation. Even jf the fundamental reason for absence analysis is adopted, this collective agreement contemplates family of personal exigencies that entitle an employee to personal leave days. Therefore, as accepted in the Alberta Institute of Technology case, 11 supra, in the citation quoted above, an employee is entitled to interrupt the vacation time in order to take the personal/eave days. Therefore, whether a fundamental reason for absence test or a positive rights analysis is used, it leads to the same conclusion. This collective agreement entitles employees to personal leave in the circumstances that arose for the grievor. The fact that he was on vacation at the time does not preclude him from converting the vacation day to a personal leave day. The Employer's sole basis for denying the conversion was because it believed the collective agreement language did not allow for such a conversion. 1 have concluded otherwise. AccordinglYJ the grievance is allowed. The grievor's absence on September 11,2001 shall be deemed as a personal leave day. Similarly, one day shall be restored to his vacation bank. DATED at Toronto, Ontario this 13th day of December, 2002.