HomeMy WebLinkAboutUnion et al 23-10-03In the Matter of an Arbitration
Pursuant to the Labour Relations Act
Between:
RESOLVE COUNSELLING SERVICES CANADA
(the “Employer”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION
(the “Union”)
OPSEU File Nos. 2023-0489-0001/0002/0004/0005/0006
A W A R D
Paula Knopf, Arbitrator
Appearances:
For the Employer: Christopher Edwards, Counsel
Stafford Murphy
For the Union: Emily Cumbaa, Regional Grievance Officer
James Sommerville, Grievance Officer
Lisa McIntosh-Wales
Sarah Lavigne
Sarah Lappan
This hearing was conducted via video conference on September 20, 2023.
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The Parties’ Collective Agreement provides for paid vacation and the accrual of
vacation during Pregnancy, Parental and Adoption Leaves. The Employer has been
pro-rating vacation pay based on the length of the leave period. The Union has filed five
individual and one Policy grievance challenging this practice.
The Employer raised objections and defences to the grievances based on the language
of the Collective Agreement, timeliness, past practice, estoppel, and laches. Instead of
delving into the evidence required to examine some of these defences, the Parties
elected first to seek an interpretation of their Collective Agreement based on the
language of the relevant provisions and applicable case law. This process was possible
given both Parties’ assertion their Collective Agreement is clear and unambiguous, even
though they interpret the relevant terms differently. Accordingly, the Parties reserved
their respective rights to deal with the additional issues, if required.
The context of this case is relevant. The Employer is a not-for-profit charitable agency
serving southeastern Ontario. It provides a range of important counselling programs to
individuals, families, groups, and employers including, but not limited to, child and youth
issues, intimate partner violence, developmental disability services and financial
wellness. The bargaining unit consists of Counsellors, Therapists, Administrative
Support, and Facilitators.
The relevant provisions of the Collective Agreement are as follows:
ARTICLE 3 - MANAGEMENT RIGHTS
3.01 The Union acknowledges that it is the exclusive function of the Employer
to manage and direct the employees in the workplace. This right shall not be
abridged except as specific restrictions are set forth in this agreement.
ARTICLE 13 - SERVICE AND SENIORITY
13.01 (a) Seniority as referred to in this agreement shall mean length of
continuous service in the bargaining unit from the last date of hire in the
employ of the employer and shall be on a bargaining unit-wide basis.
Clarity Note:
Last date of hire includes all unbroken service prior to certification of the
Union for all bargaining unit members.
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13.07 Loss of Seniority and Termination of Employment
Continuity of service shall be considered broken and employment
terminated if the employee:
a) resigns or retires;
b) is discharged (and the discharge is not reversed through the
grievance arbitration procedure); fails to report to work at the
expiration of a leave of absence unless a reason satisfactory to the
Employer is given;
c) fails to notify in writing the Employer of the employee’s
intentions within seven calendar days and fails to report for work
within fourteen calendar days after issuance of notice of recall by
registered mail to the employee’s last address on record with the
Employer;
d) is absent from work for three days without providing a reason
satisfactory to the Employer;
e) is laid off for a period in excess of 24 months;
f) uses a leave of absence for a purpose other than that for
which it was granted;
g) is absent from work more than twenty four (24) months by
reason of illness or other physical disability, and there is no
reasonable likelihood the employee will return to work within the near
future.
h) It shall be the responsibility of the employee to keep the
Employer informed of the employee’s current address. If any
employee fails to do this, the Employer will not be responsible for a
failure of a notice to reach an employee.
ARTICLE 18 - VACATIONS
18.01 For the purposes of calculating entitlement
a) The annual leave year shall be based on the employee’s
service with the Employer calculated from the last date of hire.
b) Full-time and Part-time employees will be credited with their vacation
entitlement at the beginning of the vacation year. The vacation year
shall run from the first day of the first pay commencing the fiscal year
and ending the last day of the last pay of the fiscal year.
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Employees who resign, retire, or otherwise leave their employment
for any reason, shall have their vacation entitlement pro-rated in
accordance with the time worked in the vacation year of leaving,
such that
(i) If the employee has not taken all vacation time accrued up
to the time of departure, they will be paid in lieu of any
vacation time accrued but not taken, and
(ii) If the employee has used vacation time beyond their accrual
entitlement at the time of departure, they will have deducted
from their final paycheque any vacation time that was used
but not accrued.
c) Unless there is specifically authorized carry-over, all vacation should
be taken prior to the last day of the last payroll of each vacation year.
Should an employee have more vacation at this time then their 2
weeks of carry over, it can be scheduled by the employer or it will be
paid out on the final payroll of the fiscal year.
d) Vacation will not accrue during any absence exceeding thirty (30)
continuous calendar days with the exception of maternity/parental
leave, Leaves covered under the ESA and short term disability.
f) All Full-time and Part-time employees shall receive vacation with pay
as follows:
i) Upon hire employee will be credited fifteen (15) working days of
vacation leave
ii) In the vacation year during which the employee will complete
five (5) full years of employment, they will be credited with
twenty (20) working days of vacation leave.
iii) In the vacation year during which the employee will complete
ten (10) years of employment, they will be credited with twenty
five (25) working days of vacation leave.
iv) In the vacation year during which the employee will complete
twenty (20) years of employment, they will be credited with thirty
(30) working days of vacation leave.
18.05 Vacation entitlement for part-time staff will be pro-rated as to full-time staff.
19.06 Pregnancy/Parental/Adoption Leave
a) Pregnancy Leave
Pregnancy Leave will be granted in accordance with the provisions
of the Employment Standards Act, 2000.
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b) Parental Leave/Adoption
Parental/Adoption leave will be granted in accordance with the
provisions of the Employment Standards Act,2000.
c) During the leave(s) expressed above, an employee shall continue to
accumulate seniority, vacation and sick leave. The Employer is also
obliged to continue making all contributions to health and welfare
plans and pension plans.
d) Vacation will not accrue during any absence exceeding thirty (30)
continuous calendar days with the exception of maternity/parental
leave, Leaves covered under the ESA and short term disability.
f) All Full-time and Part-time employees shall receive vacation with pay
as follows:
i) Upon hire employee will be credited fifteen (15) working days of
vacation leave
ii) In the vacation year during which the employee will complete
five (5) full years of employment, they will be credited with
twenty (20) working days of vacation leave.
iii) In the vacation year during which the employee will complete
ten (10) years of employment, they will be credited with twenty
five (25) working days of vacation leave.
iv) In the vacation year during which the employee will complete
twenty (20) years of employment, they will be credited with thirty
(30) working days of vacation leave.
The Submissions of the Union
The Union asserted the Collective Agreement provides a vacation entitlement to time
and pay based on status, rather than work performance during Pregnancy, Parental and
Adoption Leaves. The Union relied on Articles 13.01, 13.06, 13.07 and 18.01 to assert
employees “shall receive vacation with pay” based on their years of employment. The
Union emphasized the contract has no specific language to indicate a pro-rating of
vacation pay and that nothing in the Collective Agreement “ousts” any portion of
vacation pay from the vacation entitlement. The Union asked for the Collective
Agreement to be “read as a whole” and in accordance with the principles of
interpretation in Ontario Public Service Employees Union, Local 380 v Muskoka
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Algonquin Healthcare, 2019 CanLII 78848 (Wacyk) and Cornwall Community Hospital v
Ontario Public Service Employees’ Union, Local 402, 2016 CanLII 51102 (Marcotte).
The Union submitted employment status and years of service are the only pre-requisites
to vacation entitlement. The Union argued the contract does not provide for paid and
unpaid vacation during these leaves, resulting in an entitlement to vacation with pay, not
vacation time with a separate calculation for vacation pay. To support this interpretation,
the Union pointed to Articles 18.01(b) and 18.05 where the Parties have specified when
pro-rating should occur but chose not to do so for full-time employee on Pregnancy,
Parental and Adoption Leaves. Further, the Union stressed that these leaves were
excluded from the denials for accrual during the other extended leaves in Article
18.01(d). In support of these submissions the Union relied on Federated Cooperatives
Ltd. and Miscellaneous Employees Teamsters Local Union 987 (2004), 130 LAC (4th)
185 (Ponak); Oakville (Town) v Oakville Professional Firefighters’ Association, 2020
CanLII 94876; Stoney Creek (City) v CUPE, Local 1220, 1994 CarswellOnt
6147(Dissanayake); Stoney Creek (City) v CUPE, Local 1220, 1998 CarswellOnt 6203
(Knopf).
In anticipation of the Employer’s arguments, the Union asserted the Collective
Agreement provides “greater benefits” than the Employment Standards Act (the Act)
and should not be read as restricting the vacation benefit to the terms of the Act. It also
suggested its interpretation of the Collective Agreement is consistent with the Act
because it prescribes that employees shall continue to accrue seniority and services
during Pregnancy, Parental and Adoption Leaves and does not preclude the accrual of
vacation pay as well.
In closing, the Union asserted the Collective Agreement does not allow for the pro-rating
vacation pay for the periods where employees are on their Pregnancy, Parental and
Adoption Leaves. At this stage the of the proceeding, the Union simply seeks a
declaration that the Collective Agreement provides for the accrual of both vacation time
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and pay during an employee’s entire leave of absence on Pregnancy, Parental and
Adoption Leave.
The Submissions of the Employer
The Employer stressed the Union’s interpretation of the Parties’ contract would confer
an “extremely rich” benefit on employees who take Pregnancy, Parental and Adoption
Leaves and would have a significant financial impact on this not-for-profit organization.
The Employer urged this Arbitrator to apply the fundamental principle of contract
interpretation which dictates a monetary benefit must be specified in a Collective
Agreement.
The Employer argued the Parties’ contract does not specify a vacation entitlement to
include pay for the entire period of the leaves and noted Article 18.01(b) pro-rates the
entitlement in certain circumstances which means entitlement is not dependent solely
on service. The Employer also suggested because Article 18.01(f) does not specify
how much vacation pay is owed, this should not be read as providing pay for the full
duration of the leave. The Employer argued the Union’s interpretation would result in
an amendment or modification of the Collective Agreement and would be contrary to the
principles set out in UA v. Electrical Power Systems Construction Assn. 2021
CarswellOnt 8337 (Seveny); Northstar Aerospace-Milton v. CAW-Canada, [2006] L.V.I.
3649-4 (Gorsky); Atlas Copco Exploration Products v. I.A.M & A.W. Local 2412, [2011]
O.L.A.A. No 270 (Levinson); Complex Services Inc. v. OPSEU Local 278, 2011
CarswellOnt 5935 (Surdykowski).
The Employer also asserted inclusion of the ESA references in Article 19.06 (a) and (b)
are a further indication there was no intention to accrue pay during Pregnancy, Parental
and Adoption Leaves because it does not prescribe a vacation entitlement with pay and
this is consistent with the Ministry of Labour’s Employment Standards Act Policy and
Interpretation Manual. While acknowledging employees do accrue vacation time
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during these leaves, the Employer stressed most employees do not take their accrued
time because it is understood to be “time without pay”.
The Union’s Reply Submissions
The Union agreed with the Employer’s submission that monetary entitlements must be
clearly specified in a collective agreement. On that basis, the Union stressed Articles
18.01, 13.06 and 19.06 explicitly prescribe vacations with pay, create an entitlement
that continues to accrue during Pregnancy, Parental and Adoption Leaves and list the
only exceptions to accrual; none of which include these leaves. In response to the
Employer’s reliance on the ESA, the Union suggested the Employer’s interpretation of
Article 19 would negate the greater undisputed vacation time the Parties’ have included
in their Collective Agreement.
The Decision
When an arbitrator is asked to interpret the language of a Collective Agreement based
solely on the words the parties have chosen, the result is driven by those words, read in
the context of their contract as a whole. The rules of contract interpretation include the
need for a clear expression of intention to confer a financial benefit in a collective
agreement, which is why parties are presumed to intend the plain and ordinary meaning
of the words they choose, and they must understand their contract will be read as a
whole. The terms conferring financial advantages, such as compensation, benefits, and
vacation are items of great importance to employees and have significant financial and
practical impact on employers. Therefore, it is critical to ensure the contractual
language supports a claim for compensation when the claim is being challenged.
The arbitral case law and the Parties also recognize there is a critical difference
between the accrual of vacation time and the accrual of vacation pay. For example, the
ESA creates the statuary minimum of providing the accrual of vacation time during any
employee’s Pregnancy, Parental and Adoption Leaves, regardless of whether they are
unionized. The ESA does not prescribe the accrual of vacation pay during these
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leaves. Therefore, the issue in this case is whether the Employer is able to pro-rate
vacation pay on the basis of the absence during the fiscal year while an employee is on
Pregnancy, Parental and Adoption Leave.
The following citation from Complex Services, supra serves as a guide to the analysis of
this case;
Vacation time and vacation pay are related but separate benefits . . . [citations
omitted]. Vacation pay and holiday pay are earned benefits for which employees
are eligible if they continue to be employees (status), and to which they are
entitled to the extent to which they satisfy the collective agreement or statutory
work performance requirements in that respect (service). Most of the cases fail to
distinguish between the entitlement to holiday pay or vacation pay, and the
amount of such pay to which an individual employee is entitled — which amount
may be "zero". The amount of vacation pay or holiday pay to which an employee
is entitled can depend solely on employee status if the collective agreement so
specifies. But that is not presumptively so. In fact, the opposite is true. The
quantum of vacation pay, holiday pay, or any other earned benefit entitlement
does not depend on employee status alone unless the collective agreement says
so. It is now beyond dispute that unless the collective agreement specifies
otherwise, vacation pay and holiday pay are earned benefits based on active
service. The quantum of vacation or holiday pay to which an employee is entitled
depends on what the collective agreement specifies in that respect — which
even the cases which have not applied the ESA or the Code agree is so —
unless the collective agreement runs afoul of the Code, or is either silent or does
not meet the minimum standards established by the ESA. In the latter case the
ESA prevails. If the collective agreement provides a greater benefit it prevails
over the ESA . . . [citations omitted]. [at para 57]
The Parties’ Collective Agreement specifies an employee “shall receive vacation with
pay”, Article 18.01(f) and is credited each fiscal year with a set number of days of leave
based on their years of employment, calculated from the last date of hire, Article 18.01.
Someone on Pregnancy, Parental and Adoption Leave does not lose employment
status or ceases continuous employment during those leaves. The contract specifies
seniority “shall continue to accumulate” while an employee is on pregnancy and
parental leave, Article 13.06. Therefore, an employee’s vacation entitlement is based on
their date of hire. In contrast, part-time employees accumulate seniority based on their
hours worked, 13.02(b). The situations that will cause the loss of seniority or continuity
of service are specified in Article 13.07, 13.08. Accordingly, the amount of vacation
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entitlement to which a full-time employee is entitled depends on their “service” as
defined in Article 18.01 and as protected by the carve out exemptions for absences due
to pregnancy and parental leave.
The Collective Agreement also specifies vacation entitlement can be pro-rated when an
employee resigns, retires, or leaves their employment, Article 18.01(b), or if they are
absent for more than thirty continuous days, unless the absence is due to the absences
protected by the ESA, and maternity or parental leave, Article 18.01(f).
Reading of these provisions “as a whole” leads to two important conclusions. First, the
quantum of vacation entitlement is not based on active service for employees who are
on Pregnancy, Parental and Adoption Leaves. Otherwise, the exemptions of those
leaves would not have been specified. Further, since the vacation entitlement does not
separate out vacation time and vacation pay, it must be presumed that the entitlement
includes both because vacation pay is based on an employee’s status, not active
service or attendance. This conclusion is buttressed by Article 18.01(b) (which specifies
the circumstances when vacation entitlement can be pro-rated) in direct contrast with
Article 18.01(d) which specifies the entitlement shall continue to accrue during
maternity, parental and ESA protected leaves. Fundamental principles of contract
interpretation demand a specific reference to over-ride a general term and for all words
to be given meaning. Since the Parties have chosen to allow the pro-rating of vacation
entitlement in specific circumstances and carved out protections for Pregnancy,
Parental and Adoption Leaves, that protection must be respected.
Accordingly, it must be concluded the Parties have contracted to provide vacation
entitlements with pay and neither time nor the pay can be pro-rated for periods of
absence due to Pregnancy, Parental and Adoption Leaves, which is consistent with the
conclusions reached in Federated Co-operatives Limited and Miscellaneous Employees
Teamsters Local Union 987, supra that dealt with very similar language to the case at
hand.
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This conclusion does not ignore the submissions of the Employer. I am very mindful of
the nature of this workplace and its not-for-profit status. The financial implications of
this decision could be significant; however, they are not a factor that can override what
the plain meaning of the contract dictates. Further, while this Collective Agreement
does include reference to the Employment Standards Act, the reference cannot be seen
as limiting the entitlements to the statutory minimums. It is true that Article 19.06
prescribes that Pregnancy, Parental and Adoption Leaves will be grated in accordance
with the Act. Leaving aside the issue of pay, if Article 19.06 actually limited vacation
entitlements to the minimum standards in the Act, that would read out the greater
entitlements to time provided in Article 18.01(f). The Employer does not suggest the
contract’s entitlements to greater vacation time are voided by Article 19.06. Therefore,
Article 19.06 does not detract or negate the entitlement to vacation with pay provided in
Article 18. Finally, while the cases cited by the Employer provide a thorough and helpful
guide to the interpretive principles applicable to this issue, the conclusions in those
cases are based on different contractual language than the Collective Agreement in this
case.
For all the reasons set out above, I must declare that this Collective Agreement does
not allow for the pro-rating of vacation time or pay during Pregnancy, Parental and
Adoption Leaves.
This conclusion leaves unresolved the questions of whether the Union’s Policy and/or
the individual grievances are barred by reason of estoppel, waiver, laches or timeliness
and/or what might be any remedial consequences arising from those issues. Since the
Parties have retained their rights with respect to those matters, I remain seized with the
grievances should my further assistance be required.
Dated at Toronto this 3rd day of October 2023
_______________________________________
Paula Knopf - Arbitrator