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HomeMy WebLinkAboutGlover 01-06-19 AUi-13"lOOl Ol:47pm From"RWBO ~ BETWEEN: BEFORE: FOR THE UNION: 4163409160 IN THE MATTER OF AN ARBITRATION llandlton Community Support Association Operating As Wellington Psychiatric OutreAch Program (The Employer) - and - Ontario Public Service Employees' Union (The UniOI1) Grievance of Kim Glover R.lack Roberts, Arbitrator Maureen Doyle Counsel FOR THE EMPLOYER: Deborah A, Howden Counsel HEARINGS: Hamilton, Ontario, April 11. 2001 T-091 P.OOl/009 F-6l9 AUK-13-20D! O~:47pm Frcm-RWBO 4183409~50 T-091 P.003/009 Fa6~9 ... 1 A W,AlU) I. Introdudiom This is an interesting case involving (1) interpretation of ll1e word "days" as used in an article of the collective agreement requiring employees who, inTer alia, were absent on sick leave for more than thirty "days" to pay the premiums fat their" benefit plan; and, (2) a determination whether the article requil'ed employees who were absent for more than thirty days to pay the premiums for the entire p~riod of their absence. On the first issue, I have found that the most probable .meaning of I!days" is ucalendar days'l. On the second issue, 1 have found that the article only requites employees who were absent for more than thirty days to pay the premiums for the period of absence in excess ofthiny days. On December 31> 2000, the grievol' was injured and, as a result, could not rerum to work for her next scheduled shift, which was on January 2, 2001. A$ it tllmed out, the grievor did not r"tunl to \\lOl"k lIntil Fehruary 12, 2001. After 30 calcndnr dayS had elapsed, lh~ l;lllploYl:;l Aus-1S-2001 02:47pm From-RWBD 4163409250 T-091 P.004/000 F~629 2 notified the grievor that she was responsible for paying all of her benefit plan premiums for the entire period of her absence. On January 30, 2001. the grievor. filed the grievance leading to the present arbitration. Pending resolution of the grievance, the employer paid the premiUlllil for January and February, 2001. In. Tho Issues Raised by the Parties: At the hearing, the parties raised two issues involving interpretation of article 21.05 of the collective agreement, which reads, in penment part, as follows: 21.05 Where an employee does not work by reason of: ( I) Leave of absence for any cause other than pregnancy Ol' parental leave; . . (ii) Accident Ot illness; or~ ( Hi) Layoff; the Employer agrees to continue making the normal contribution towards the premium charged to the employee for me benefit plan during the first thirty (3D) days of such absence. Thereafter, the responsibility for the payment of the entire amount of the premiums identified in Article 21.01 herein [group life insunmce, 19n9 term disability, extended health care, vision qare, and, dental plan] shall rest with the employee for the duration of this absence from work. Employees shall remit premium. payments to the Employer at least one week in advance of the first day of e..Rch month of coverage. .... As indicated in the introduction to this award, the first issue raised by the parties was whether me word "daysll, as used in the above provision~ should be interpret~d as meaning Hcrdondar daysll or Uworking daysll. The second was whether an absence that exceeded 30 days made the tmpl()ye(~ Hable for payment of premhuns for the eniire period of absence or only that Aug-13-2001 02:47pm From-RWBD 4163409250 T-091 P.006/00e F-629 3 portion of the absence which exceeded 30 days. I will address these issues seriarim hereinbelow: IV. Consideration of the Issues: (1) Calendar Days vs. Working Days: Neither party introduced any evidence of past practice or negotiating history relating to article 21.05 of the collective agreement. They relied, instead, upon application of certain canons of construction, including interpreting the word Itdays" (a) in accordance with its usual and ordinary meaning; (b) consistently within the context of article 21.05; (c) consistently with provisions of the agreement addressing similar subject matter; and, (d) consistently with the entire collective agreement. (a) At the outset, I accept the submission of counsel for the employer that the usual and ordinary meaning attributed to the word rrdays" is "calendar daysll and that in the absence of persuasive evidence to the contrary, arbitrators have adopted this meaning. See Re Canada Post and Canadian Union 0/ postal Workors (1989), 3 L.A.C. (4th) 444, at 446 (Weatherlll); Re Board a/Education o/the City a/HamilTon and Ontario Secondary School Teachers' Fed2tafion, Df.m'ict 8 (1983), 10 L.A.C.(3d) 126. at 130; and. Brown & Beatty. Canadian Labour Arbitration (3rd ed.), at s. 4-2100. (b) I am not convinced that persuasive evidence to the contrary can be found within the context of article 21.05. Counsel for the union submitted that the imrodtwtory phrase to article 21.0$, uWhere [IT! employee does not wm'k by l'CaSOll of... iHness", demonstrated iIJW ihe l)inri€s AUi-13-20al 02:47pm From-RWBD 4163409250 T-091 P.OOS/009 F-629 4 must have intended "thirty (30) days" to mean "working days'l because employees did not work on weekends or statutory holidays. Counsel for the employer submitted in response that to so interpret the word "daysll would lead to an absurdity in the rest of article 21.05 because it made employees responsible for 1;he payment of premiums "for the uw'ation .of this absence from work". If this were so, counsel submitted, premiwn payments would have to be considered to accrue on a "thirty (30) working days" basis when, as the parties expressly acknowledged at the end of the provision, they accl1led each calendar month. In my view, neither of these submissions seems decisive. Rather, the submissions appear to illustrate the use ofloose and potentially copflicting language in the provision which can, and has been, cited to support one interpretation or another. There seems to be no definitive harmony within the context of article 21.05 from which it might be inferred that the parties intended to apply other than. the usual and ordinary meaning of the word udays". ( c) I am similarly llllconvinced that persuasive evidence to the contrary might be found in provisions of the agreement addressing similar subject mat1er. Counsel for the union submiued that the parties mtlst hnve intended "days" in article 21.05 to be "working days" because the article addressed the question of sick leave and should be read consistently with the sick leave provisions of the agreement. While the sick leave provisions of article 19.06 of the agreement spoke only in telUlS of Udaysrl and not I1working days") counsel submitted, it was obvious that the reference to "dayslJ therein must have been intended to be to working days. Aug-13w2001 02:48pm Frgm-RWBD 4163409250 T-091 P.007/009 F-629 .. 5 Although counsel's observations regarding the meaning of fldaysll in anicle 19.06 might weH be accurate, that question is not at issue in this arbitration and it would seem to be straying beyond the legitimate scope of this award to adopt the constrUction sq.ggested by counsel for the union and then "bootstrap" to it the meaning of II days 11 in article 21.05, which is at the heart of the present matter. I also make the observation that, as counsel for the employer pointed out, article 21.05 is not similar in scope to the sick leave provisions. It applies not only to illness but also to layoffs and leaves of absence for other than pregnancy or parental leave. In light of this, it would seem that it might not be apt to draw a significant part of its meaning from a narrow comparison with the sick leave provisions ofilie agreement. This brings me to article 23.03 of the agreement, which reads, in pertinent part, as follows: 23.03 In determining the period of continuous service of each employee ..., tIDY periods of absence in excess of thirty (30) consecutive calendar days due to illness, injury, lay-off or leave of absence, other than leave of absence for jury duty, shall not be included in such calculations. The article showed, counsel for the union suhmittedt that when the parties intended to refer to an a.bsence of thirty consecutive calendar days in a provision with a similar focus to that of article 21.05, they spelled it out. In short, the panies knew how to spell out calendar days. This led to a strong inference, counsel submitted, that because article 21.05 did not spell it.out, its reference to ndaysll must have been intended by the panies to refer to working days. AUi~la~2001 02:49pm From-RWSO 41ea400250 T-OOl P,009/009 F-629 .; 6 (d) In my opinion, this might have been a powerful argument in the interpretation of a collective agreement that consistently made this distinction throughout it~ provisions. The present collective agreement does not. AS counsel for the union acknowledged at the hearing, there does not seem to be any observable harmony among the prov isioJlS of the agreem.ent. When working days were intended, it waS sometimes spelled out and sometime not. When calendar day~ were intended, it was sometimes spelled out and sometimes not. In these circumstances, the failure of the parties to specify in a particular provision whether a "dayll was a Ifworking day" or 'Icalendar dayll caMot be regarded as pers\lasive evidence either way. Accordingly, I am led to conclude that the most probable meaning of the word IldayslJ as used in article 21.05 of the agreement is its usual and ordinary meaning off'calendar days", No persuasive evidence to the contrary was adduced at the hearing. (2) Liability for Payment of Premiums: The evidence showed that in correspondence with the grievor, the employer took the I?osition that employees who were absent for more than thirty calendar days due, Inter alia, to accident or illness, became liable under article 21.05 to pay all of their benefit plan premiums for the entire period of their absence. This position was based upon the reference in article 21.05 to employees who were absent for more than thirty days "thereafterll paying the "entire amountfl of rhe premiums for the duration of their absence from work. AUi-13~2GGI 02:48pm From-RWBD 41634G9250 T-091 P,G09/GG9 Fn629 v 7 I reject this position. Forcing employees who were legitimately absent for more than thirty days to pay aU of their benefit plan premiums would exempt the employer from its clear obligation under the first sentence of article 21.05 to continue paying its contribution duril1g the first thirty days of the absence. It also would make a puniLive distinction between em.ployees who were absent for less than thirty days and those who were legitimately absent for more. That would be patently unreasona.ble. It is concluded that the obligation of an employee to pay benefit plan prernhuns under article 21.05 of the collective agreement extends solely to the premiums attributable to the period of absence that exceeds thirty calendar days. v. Con"clusion: The grievance is dismissed in part and allowed in part in accordance with the conclusions reached above. I will retain jurisdiction pending Lrnplementation of the terms of the award. I would like to express my gratimde to counsel for the union, Ms. Doyle, and counsel for the employer. Ms. Howden, for their interesting and helpful presentations at the hearing. Dated at ToronTO. Ontalio~ this nineteenth day of June, 2001.