HomeMy WebLinkAboutMacDonald 11-04-04
Before:
Appearances
For the Employer:
For the Union:
IN THE MATTER OF AN ARBITRATION
BETWEEN:
The City of Guelph
and
OPSEU
(Grievance of J. MacDonald)
William Kaplan
Sole Arbitrator
Mark Mason
Hicks Morley
Barristers & Solicitors
Mitch Bevan
Grievance Officer
OPSEU
This matter proceeded to a hearing in Guelph on March 28, 2011.
Introduction
Jaime MacDonald (hereafter "the grievor"), is a paramedic employed by the City of
Guelph. On December 17, 2009 she filed a grievance alleging a breach of Article 28 of
the collective agreement. Article 28 is the Leave of Absence provision. Article 28.11
provides for pregnancy and parental leave top-up. There is no dispute between the parties
that the grievor was entitled to take pregnancy leave. The dispute concerns the contested
entitlement to top-up. The grievor claimed it, but the employer rejected that claim on the
basis that the grievor was a part-time employee and, as such, received a payment-in-lieu
of benefits.
The case proceeded to a hearing held in Guelph on March 28, 2011. There was no need to
call any evidence but there was one stipulated fact: The parties agreed that the City of
Guelph, a successor employer, paid bereavement leave on at least two occasions after
assuming responsibility for paramedics but then made the decision not to continue
- --making lhesepaftictilar .payments:-ItWifsrurtneragreedthanhete has-beehhore~uestfor.....-
bereavement pay by a part-time employee since the employer made the decision to no
longer provide a part-time employee with bereavement pay.
The Collective Agreement
Before turning to the arguments of the parties, it is useful to describe the relevant
provisions of the collective agreement. As noted above, Article 28 is the general leave of
absence provision. It provides for bereavement leave, education leave, jury duty leave,
union leave, pregnancy and parental leave. It also provides for compensation in the case
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of bereavement leave, jury duty leave and, of course, the pregnancy and parental top-up.
The provisions apply to "employees."
Article 30 is titled "Employee Benefits." It provides for a variety of benefits such as
OMERS, OHlP premiums, vision care, semi-private, life insurance, dental, STD, L TD,
drug card, paramedical services, etc. Article 30.05 provides as follows:
Part-time Pavment-in-lieu of Benefits: Effective April 1, 2010, the part-time percentage in lieu
of all benefits under the collective agreement will be increased from eleven percent (11 %) to
twelve percent (12%). This is inclusive of vacation pay and any other benefits other than holiday
pay and sick leave pay.
Union Argument
In the union's submission, pregnancy and parental leave, and the associated top-up, were
not "benefits" and were not, therefore, subject to Article 30.05. Article 30 listed the
benefits enjoyed by employees, and in Article 30.05 provided for a payment-in-lieu of
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however, among the listed benefits. Article 28 was a completely different provision ofthe
collective agreement, and it conferred leave rights, not benefits, on all "employees" not
just full-time employees.
It was noteworthy, in the union's view, that where the parties wished to treat part-time
employees differently than full-time employees, such as in the case of uniform
entitlement (Article 29.02), or sick leave (Article 25.07), they used specific language in
specific collective agreement provisions to do so. In the past, part-time employees had
received payment when taking a bereavement leave. There was nothing in these
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provisions excluding part-time employees and there was, accordingly, in the union's
view, no justification to read such exclusions into these provisions.
Moreover, the union argued, the authorities supported the position it was taking, in
particular, North Bay Police Services Board & North Bay Police Assn. 82 C.L.A.S. 319
(Swan) where the arbitrator awarded top-up in an almost identical case. The union asked
for an order directing the employer to pay the grievor her top-up, with the matter of the
calculation of the compensation, if need be, remitted to the parties.
Employer Argument
In the employer's view, top-up was a benefit and the collective agreement provided for a
payment-in-lieu of benefits for part time employees. Article 30.05 was dispositive: it
referred to "all benefits" and it excluded part-time employees from benefit payments like
top-ups. While bereavement leave may have once been paid to part-time employees, it
...---------~-~had-not-been-paidin-a-while-and-what-wasmaterialwas-that-once theemployer------- -... -----.~----~-~-----
considered the matter, it determined that there was no obligation to make this payment.
Moreover, the employer continued, canons of collective agreement interpretation had to
be taken into account. What was the intention ofthe parties? Obviously, they intended
part-time employees to obtain a payment-in-lieu instead of the top-up. Clear language
was required to confer a monetary benefit on employees, and when the collective
. agreement was considered as a whole, and in particular the wording of Article 30.05, it
was evident that the parties negotiated an agreement whereby all benefits would be
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subsumed in the payment-in-lieu. There was little doubt, the employer argued, that top-up
was a fringe benefit and was referred to as such in Brown & Beatty (8:3900). In addition,
there were obvious practical problems in determining what top-up payment a part-time
employee would be entitled to receive. Had the parties wished part-timers to obtain top-
up, they would have negotiated a corollary calculation of compensation provision. It was
significant, in management's opinion, that they had not. The inference was irresistible,
the employer argued, that they had not done so because there was never any shared
intention that part-time employees receive this benefit in addition to their payment-in-
lieu. Accordingly, for all of these reasons, and others, the employer asked that the
grievance be dismissed.
Decision
Having carefully considered the submissions of the parties, I am of the view that the
grievance should be allowed.
In North Bay Police Services Board & North Bay Police Assn., Arbitrator Swan was
called upon to determine the identical issue: whether a part-time employee was entitled to
top-up during her pregnancy leave. In that case, there was no specific limitation to
entitlement to top-up to full-time employees. There was a payment-in-lieu provision for
part-time employees. Slighting differentiating that case from this one, but not in any
factually or legally material way, was some contradictory past practice. Nevertheless, the
question Arbitrator Swan addressed was whether top-up constituted a benefit. He decided
it was not.
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".. .the provision dealing with the top-up is included in the section of the collective agreement
dealing with leaves of absence, rather than the provision dealing with medical, hospitalization and
dental benefits, which both parties agreed are covered by the 12% in lieu payment.
Parental/pregnancy leave cannot be denied to part-time employees, since it is required by the
Employment Standards Act, and the payment of the regular benefit under the Employment
Insurance Act is also available to part-time employees based on their earnings in the relevant
period prior to the leave (at para 20).
Arbitrator Swan went on to note that there was nothing in the leave of absence provisions
that excluded part-time employees. Moreover, he concluded, "leaves of absence, whether
unpaid or paid or partially paid, are different in kind from benefits" (at para 22).
Accordingly, Arbitrator Swan concluded that part-time employees, in receipt of a
payment-in-lieu, were still entitled to the top-up provisions of the pregnancy/parental
leave provision. This reasoning is persuasive.
Moreover, in this case the employer did not dispute that part-time employees were
entitled under the collective agreement, and in some cases statute, to take the different
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employees to receive the compensation provided for in the case of pregnancy and
parental leave top-up (and presumably bereavement and jury duty leave). It would be
rather odd, as a matter of contract interpretation, to conclude that the part of the
pregnancy and parental leave provision applied to part-time employees, but that other
parts did not absent any language directing that result. The provisions apply to
"employees" and nothing in these provisions restrict any part of them to full-time
employees.
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, '
To be sure, the employer identified some potential administrative difficulties in
determining the quantum of top-up for part-time employees. The absence of a specific
compensation protocol is not determinative ofthe issue. Much more relevant is that
where the parties wished to exclude part-time employees from entitlements enjoyed by
full-time employees, they did so clearly and unequivocally. In this case, the leave of
absence provisions apply to all employees. Administrative difficulties, assuming for the
sake of argument that this is a real issue, in determining the quantum of top-up cannot
stand as a bar to its entitlement. The collective agreement already provides a system for
converting part-time seniority to full-time seniority and vice versa. Anticipated
difficulties in determining the exact amount of top-up for a particular employee cannot
preclude access to this negotiated entitlement.
Accordingly, and foregoing reasons, the grievance is allowed. The employer is directed
to provide top-up to the grievor. At the request ofthe parties, I remain seized should any
implementation issues-arise:-
DATED at Toronto this 4th day of April 2011.
"William Kaplan"
William Kaplan, Sole Arbitrator
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