Loading...
HomeMy WebLinkAboutX 11-05-10BETWEEN: IN THE MATTER OF AN ARBITRATION (Under the Labour Relations Act, 1995) COMPLEX SERVICES INC. c.o.b. as Casino Niagara and Niagara Fallsview Casino Resort (the "Employer ") ONTARIO PUBLIC SERVICE EMPLOYEES UNION On behalf of its Local 278 (the "Union ") AND IN THE MATTER OF an arbitration of the Union policy grievance dated February 26, 2010 (OPSEU #2010 - 0278 -0001) and the individual grievance of "X" dated March 22, 2010 (OPSEU #2010- 0278 -0002) under the collective agreement between the parties. 11-1311114110 _ __ 6,147.111 IN • • • • 1' • • G. T. SURDYKOWSKI — Chair JUDITH RUNDLE — Employer Nominee EDWARD SEYMOUR — Union Nominee APPEARANCES: For the Employer: Simon Mortimer, Counsel; Paul Piugue, Legal Counsel; Richard Paris, Director of Security; Gemma Copeland, Manager, Compensation Benefits. For the Union: Christopher Bryden, Counsel; Rob Gale, President Local 278; Joanne Sheehan, Chief Steward; "X ", Grievor. HEARING HELD IN NIAGARA FALLS, ONTARIO ON FEBRUARY 3, 2011 Copyright © George T. Surdykowski Arbitration/Mediation Inc. 2011 [All rights reserved. Reproduction or storage in any retrieval system in whole or in part, in any form or format, by anyone other than the parties, or for use in legal proceedings, for not - for - profit educational purposes, or as required or permitted by law, without express written consent is prohibited.] Oil rX 1 N EIT11 1 a i7k E I LFAV on O1 1. The question in this case is whether the vacation and vacation pay, holiday pay, and personal time off benefits under the collective agreement between the parties continue to accrue to an employee who is absent from work because of a compensable injury (under the Workplace Safety and Insurance Act, 1997 (the "WSIA "). 2. Two grievances have been referred to be arbitrated by this Board of Arbitration: a Union policy grievance dated February 26, 2010 (OPSEU #2010- 0278 -0001) and an individual grievance dated March 22, 2010 (OPSEU #2010- 0278 - 0002). The individual grievance involves confidential medical information, and the identity of the individual is immaterial to this Award. The grievor's name has therefore been anonymized to protect his privacy. 3. Both grievances raise the same collective agreement interpretation issue. The individual grievance also potentially raises an application issue to the extent that the policy grievance succeeds. 4. The parties agreed to proceed with the Union policy grievance, and to adjourn the individual grievance sine die pending the determination of the policy grievance. They further agreed to proceed with the policy grievance on the basis of stipulated facts taken from the individual grievance, without prejudice to the facts which either party may assert in the individual grievance. 5. Although this Award therefore deals directly with only the Union policy grievance, it will obviously impact on the individual grievance. 6. The following "example" was posited to provide a factual matrix for the policy grievance. 7. A full -time bargaining unit employee hired in 1999 suffered a knee injury at work on or about June 30, 2009. A workers' compensation claim was filed and allowed. The employee received workers' compensation benefits, including loss of earnings benefits. As a result of the workplace injury, the employee underwent medically advised knee surgery at the end of November 2009, following which he was off work for two 3 additional months until he returned to work on or about January 27 2010. During that period there were three (3) collective agreement (and Employment Standards Act — hereinafter the "ESA ") paid holidays; namely, Christmas Day, Boxing Day and New Year's Day (Article 21). When the employee received his first paycheque after his return to work in February 2010, he discovered that he had not been paid for those holidays, or credited with "personal time off' ( "PTO ") under Article 23 of the collective agreement for the period of his absence from work. Nor was he given vacation credits for that period under Article 22 of the collective agreement. 8. The relevant provisions of the collective agreement read as follows: ARTICLE 3 — NO HARASSMENT/DISCRIlIIINATION 3.02 The Employer, the Union and employees agree that they all have rights and obligations under the Ontario Human Rights Code. ARTICLE 12 — SENIORITY 12.01 (a) "Seniority ", as referred to in this agreement, shall mean length of continuous service in the bargaining unit from the last date of hire into current status /position within the bargaining unit. (b) "Service ", as referred to in this agreement, shall mean length of employment with the Employer from the date of hire. ARTICLE 14 — LAYOFF 14.02 In the event of a layoff, the following will apply: (d) Full -time and /or part-time employees so identified will be laid off in reverse order of seniority subject to the ability to perform the work required. (e) A laid off full -time employee may elect to displace the junior part-time employee(s) if he or she has greater service. Despite the provisions of Article 12.03, such full -time employee will be placed on the part-time seniority list based upon his or her service date. M ARTICLE 21— PAID HOLIDAYS 21.01(a) The paid holidays recognized by the Employer will be as follows: New Year's Day Labour Day Family Day Thanksgiving Day Good Friday Remembrance Day Victoria Day Christmas Day Canada Day Boxing Day Civic Holiday 21.02 If any of the above holidays fall or are observed during an employee's vacation or when the employee is not scheduled to work, and she/he otherwise qualifies for the paid holiday pursuant to this Article, the employee shall receive time off in lieu of the holiday pay. Failing mutual agreement on scheduling in a twelve (12) month period, the employee shall be paid out. 21.03 Any employee required to work on any of the above - mentioned holidays shall be paid premium pay for all hours work on such day at the rate of one and one -half (1' /2) times their regular rate and shall receive another day off with pay in lieu of the holiday ( "Lieu Day "), to be scheduled within a period of twelve (12) months at a time mutually agreeable between the employee and the Employer. Failing mutual agreement on scheduling, the employee shall be paid out for the Lieu Day. 21.04 In order to qualify for premium pay and/or holiday pay, employees must work their last regularly scheduled day of work before and their first regularly scheduled dgy of work after the holiday, unless: (a) absent on vacation; (b) absent on either of those days and such absence is authorized by the Employer based on a medical certificate issued on the da�of the absence by a qualified physician which is submitted to the Employer on the day the employee returns to work (unless a valid reason can be provided for the failure to do so and the medical certificate is dated within two (2) days of the absence). (c) absent due to an emergency situation related to the employee or an immediate family member that arose on short notice and could not be addressed outside of working hours. 21.05 Employees who agree to, or are otherwise required to work on the paid holiday and fail, without meeting the requirements in paragraph 21.04(b) or (c) above, to work their entire shift on the paid holiday, will not be eligible for premium pay or holiday pay. 21.06 For the purpose of this Article only, an employee shall be considered as working on a holiday on any shift that commences on or after 11 p.m. on the day before a holiday but before 11 p.m. on the day of the holiday. ARTICLE 22 —VACATIONS 22.01 On January 1 st of each year, full -time employees with less than five (5) years of service will be granted, as an advance, up to eighty (80) hours of paid vacation time off ( "VTO ") less any paid VTO used but not earned the previous calendar year. Previous calendar year VTO earnings are based upon four percent (4 %) of such employee's ogx ss regular wages for that prior year. 22.02 Active full -time employees with five (5) years of service or greater will be granted, as an advance, up to one hundred and twenty (120) hours of paid VTO on January 1st of each year. This latter paid VTO grant may also be adjusted if the employee used more paid VTO than was earned the previous calendar year. Previous calendar year VTO earnings in this circumstance are based upon six percent (6 %) of such employee's ogr ss regular wages for that year. 22.03 Active full -time employees with ten (10) years of service or greater will be granted, as an advance, up to one hundred and sixty (160) hours of paid VTO on January 1st of each year. This latter paid VTO grant may also be adjusted if the employee used more paid VTO than was earned the previous calendar year. Previous calendar year VTO earnings in this circumstance are based upon eight percent (8 %) of such employee's gross regular ar wages for that year. 22.04 On January I` of each year, active part-time employees with less than five (5) years of service will be granted, as an advance, paid VTO based on four percent (4 9/6) of their gross regular wages paid the previous calendar year, less any paid VTO used but not earned the previous calendar year. Active part-time employees with five (5) years of service or greater will be granted paid VTO on January 15` based on six percent (6 %) of their gross regular wages paid the previous calendar year, less any paid VTO used but not earned the previous calendar year. Active part-time employees with ten (10) years of service or greater will be granted paid VTO on January I" based on eight percent (8 %) of their moss ss regular wages paid the previous calendar year, less any paid VTO used but not earned the previous calendar year. 22.05 Employees hired prior to an annual January ls` VTO grant accrue paid VTO from date of hire to the following January 1 st at a rate of four percent (4 %) of their gross regular wages during that time period. Employees completing five (5) years or ten (10) years of service prior to the January 15` VTO grant will accrue additional VTO from their anniversary date to the following January 15` at a rate of two percent (2 %) of their gross regular wages during that time period. 22.06 Employees must take their vacation each year. Unused earned paid VTO balances as of December 31" of each Year will be paid out. Vacation must be scheduled in one (1) week blocks save and except that up to forty (40) hours of earned vacation time may be scheduled in individual days, subject to availability and operational requirements. D 22.07 Regardless of paid VTO available, employees with less than one (1) year of service shall receive one (1) week vacation time, employees with greater than one (1) but less than five (5) years service will receive two (2) weeks vacation time, and employees with five (5) years of service or more will receive three (3) weeks vacation time. 22.08 A vacation request schedule shall be finalised by November 30th of each year in order to allow employees to indicate when vacation is desired. Vacation scheduling will be addressed one (1) week at a time and employees will be given preference for vacation entitlement on the basis of seniority. In special circumstances, at the Employer's discretion, an employee may be permitted to schedule two (2) consecutive weeks of vacation, 22.09 Vacation availability will be subject to operational needs. 22.10 An employee who leaves employment with the Employer for any reason prior to earning his or her advanced VTO agrees that any unearned portion used will be owing to the Employer and may be deducted from his wages. ARTICLE 23 — PERSONAL TIlVIE OFF (PTO) 23.01 (a) The Employer shall provide to employees paid Personal Time Off (PTO) to be utilized by employees who have successfully completed probation in the event of absences due to illness, injury or for emergency reasons which necessitate the presence of the employee. (b) PTO may also be pre- booked for personal matters subject to management approval. 23.02 In the event of such absence, PTO will be applied up to full -day increments but must on each occasion be for at least two (2) hours and thereafter in one hour blocks. 23.03 Employees will accrue PTO at a rate of two percent (2 %) of their gross regular wages to a maximum of forty (40) hours per calendar year. 23.04 Any unused earned PTO in excess of eighty (80) hours as of December 31" each year will be paid out. ARTICLE 26 — WORKPLACE SAFETY AND INSURANCE 26.01 (a) Where an employee is in receipt of loss of earnings benefits pursuant to the provisions of the Workplace Safety and Insurance Act, the Employer agrees to maintain its premiums coverage for insured benefits (save and except disability benefits) as provided in the Collective Agreement, and shall maintain its current participation in the pension plan, and its matching contribution so long as the employee also makes arrangements to contribute his/her portion of the Plan. The employee shall continue to accumulate vacation and service. (b) This does not apply, except in the first year following injury, where the employee is in receipt of a non - economic loss award for a permanent impairment or where the employee has accessed Labour Market Reentry services. (Emphasis added.) (a) Union Position 9. The Union's position is that the clear language of the collective agreement entitles an employee who is absent from work as a result of an injury compensable under the WSIA to lieu days for any paid holidays that occur during the employee's absence from work. In the alternative, the Union submits that the Employer's failure to provide such an employee with lieu days constitutes discrimination contrary to the collective agreement and the Ontario Human Rights Code. 10. The Union asserts that such an employee is similarly entitled to collective agreement vacation credit (i.e. vacation time off, or "VTO ") for the period of absence due to a compensable injury because Article 26 of the collective agreement specifies that an employee in receipt of loss of earnings benefits under the WSIA continues to accumulate vacation and service. The Union submits that this is not an attempt to "double dip" or obtain a benefit for being at work when the employee is not. Counsel submits that holiday pay is an earned benefit, and that vacation pay is tied to service. 11. The Union further claims that such an employee is entitled to an Article 23 PTO credit during a period of absence due to WSIA compensable injury because that credit accrues on the basis of "regular" and not "actual" wages. 12. Union counsel referred the Board to provisions of the Ontario Human Rights Code, the Employment Standards Act, Workplace Safety and Insurance Board Policy 18- 01-12 and the decisions in Re York Farms Division of Canada Packers and United Packinghouse, Food & Allied Workers, Local 469, (1970) 21 L.A.C. 188 (Schiff, Chair); Re Caressant Care Nursing Home and Service Workers Union, (1987) 29 L.A.C. (3d) 347 (Wafters); Re Children's Aid Society of Algoma and C. U.P.E., Loc. 1880, (1988) 1 L.A.C. (4th) 143 (Brent, Chair); Re Chelsey Park Oxford and Employees Union, Loc. 220, (1989) 8 L.A.C. (4th) 1 (Mitchnick, Chair); Re Miracle Food Market and U.F.C. W, (1990) 17 L.A.C. (4th) 165 (Marszewski); Re Kingston Reg. Ambulance Service and O.P.SE. U., (1992) 22 L.A.C. (4th) 193 (Wafters, Chair); Re Clarendon Foundation and O.P.S.E. U., Loc. 593, (1996) 58 L.A.C. (4th) 270 (Craven); Re Renfrew County R. C. Sep. School Bd, and Employees'Assn., (1997) 67 L.A.C. (4th) 109 (Tenace); Re Timmins (City) and C. U.P.E., (1997) 66 L.A.C. (4th) 391 (R.M. Brown); Ontario Nurses' 8 Association v. Orillia Soldiers Memorial Hospital, 1999 CanLH 3687; 42 O.R. (3d) 692 (On. C.A.); Re Atlantic Packaging Products Ltd. and C.E.P., (2001) 96 L.A.C. (4th) 64 (Goodfellow); Re Algoma Steel and U.S. W.A., Loc. 2251, [2001] O.L.A.A. No. 882 (Devlin); Re Atlantic Minerals Ltd. and I. U.O.E., (2004) 133 L.A.C. (4th) 13 (Oakley, Chair — NL); Re Essex (County) and C. U.P.E., Loc. 2974.01, (2007) 91 C.L.A.S. 26 (Hinnegan); Re Ontario Lottery and Gaming Corp. and C.A. W, [2008] O.L.A.A. No. 704 (Springate); Re Providence Care and O.P.S.E. U., Loc. 431, (2008) 93 C.L.A.S. 110 (Nairn); Re Abbott Laboratories Ltd. and C.A. W - Canada, (2009) 187 L.A.C. (4th) 82 (Baxter); and, Re Toronto Transit Commission and A.T. U., Loc. 113, [2009] O.L.A.A. No. 408 (Brunner). 13. The Union seeks a declaration that the Employer has violated the collective agreement and the Human Rights Code; an order requiring the Employer to provide VTO and PTO accruals or credits and pay, and paid holiday compensation or lieu time for employees absent from work as a result of a compensable injury and receiving WSIA benefits. The Union also seeks an order requiring the Employer to adjust "banks" of affected employees in that respect. The Union asks that the Board remain seized to deal with any implementation or administration issues. (b) Employer Position 14. The Employer denies any violation of the collective agreement or the Code, or any other legislation. It submits that Article 26 of the collective agreement is the starting point and complete answer to the grievance. Counsel argues that Article 26 specifies what the Employer must continue to provide for an employee who is off work and receiving WSIA loss of earnings benefits, which the Employer funds through the workers' compensation premiums it pays. Counsel submits that Article 26 provides only that such an employee not be treated as having a break in service for vacation scale purposes — not that the employee is entitled to vacation pay, which is a benefit earned from active employment. That is, says the Employer, an employee who is off work and receiving WSIA benefits is entitled to vacation time but does not earn the vacation pay benefit which the collective agreement specifies is calculated on the basis of a percentage of earnings with an annual correction as required. The Employer submits that there is nothing in Orillia Soldiers Memorial Hospital or elsewhere in the jurisprudence that suggests that compensation cannot be denied to employees who do not and are not available for work. 15. The Employer submits that the Article 23 PTO benefit is calculated on the basis of regular wages and therefore does not accrue to an employee who is off work and receiving WSIA benefits. 0 16. The Employer submits that Article 21.02 of the collective agreement is subject to Article 21.04, which specifies the eligibility requirements for paid holidays, and argues that Article 21.04(b) would be redundant if the Union's position is correct. Counsel observes that the collective agreement does not specify how paid holiday pay is to be calculated, but the s. 24 of the ESA provides the calculation, which is based on regular wages earned. Further, says the Employer, WSIA loss of earnings benefits received by an employee include payment for any paid holiday that falls within the period of absence due to compensable injury. 17. The Employer submits that the comparator group for the purpose of Human Rights Code considerations is the one identified by the Ontario Court of Appeal in Orillia Soldiers Memorial and not employees actively at work but not scheduled to work on the paid holiday. 18. In addition to commenting on the cases cited by the Union, including the dissent in Re Chelsey Park, the thread of which counsel submits is reflected in Re Children's Aid Society of Algoma, Re Algoma Steel, the Employer referred to Re Toronto District School Board and C. U.P.E., Loc. 4400 (November 3, 2004, Knopf, unreported). (c) Union Reply 19. In reply, counsel stated that the Union is seeking a lieu day, not pay, for each missed paid holiday, but conceded that this meant a lieu day with pay. The Union maintained that Article 21.02 entitles an employee absent from work because of a compensable injury to this benefit, and that the Article 21.04 reference to "their" regularly scheduled days of work before and after a paid holiday indicates that the intent is that this be personal to the individual employee (so that it is sufficient if the employee works his/her last regularly scheduled shift before and his/her first regularly scheduled shift after a paid holiday). The Union submits that the appropriate comparator group is all employees not scheduled to work on the paid holiday. 1 1; i (a) General 20. For ease of reference, excerpts from the ESA, the Ontario Human Rights Code and the WSIA and Workplace Safety and Insurance Board Policy 18 -01 -12 are set out in Appendices "A ", `B" and "C ", respectively. m 21. In addition to the parties representations and the cases cited by counsel, I am aware of and have considered the decisions in Re Waterloo Furniture Components and U.S. WA., Local 7155, (2000) 88 L.A.C. (4th) 75 (Baum); Re Messier -Dowry Inc. and I.A.M.A. W, Local 905, (1999) 80 L.A.C. (4th) 87 (Knopf); Re JBG Management Inc. and C. U.P.E., Local 2040, (1987) 30 L.A.C. 101 (Haefling); and, Re National Steel Car Limited and United Steelworkers ofAmerica, Local 7135, (2006) 148 L.A.C. (4th) 58; 2006 CanLH 50490 (Surdykowski). These were all decided well before the hearing in this matter and were available to the parties. 22. When it comes to collective agreement interpretation, Ontario arbitrators have both the jurisdiction and the obligation to consider, interpret and apply the legislation that forms part of the labour relations fabric of this Province to the extent that it is relevant to the matters in issue. The freedom that parties have to "make their own deal" in a collective agreement is fettered by the statutory framework within which collective agreements operate. The parties cannot contract out of the Code, the ESA or the WSIA, and any collective agreement provision which conflicts with that legislation is either void or unenforceable to the extent of the conflict. 23. The fundamental rule of collective agreement and statutory interpretation is that the words used must be given their plain and ordinary meaning unless it is apparent from the structure of the provision or the collective agreement read as a whole that a different or special meaning is intended. All words must be given meaning, and different words are presumed to have different meanings, unless the result would be absurd or inconsistent with the overall scheme and structure of the agreement. As a matter of general principle (and the Ontario Interpretation Act in the case of legislation) collective agreements and statutes must be interpreted with a view to ensuring that the spirit and intent of the collective agreement and the legislation are given the intended effect. 24. Neither party seeks to rely on extrinsic evidence. Extrinsic evidence is inadmissible as an aid to interpretation other than to provide factual context (or in aid of an assertion of ambiguity or estoppel — neither of which was asserted in this case). Legislation is not extrinsic evidence. 25. Although jurisprudence offers more assistance in a collective agreement interpretation case that involves the interplay between the collective agreement and legislation than in cases in which the statutory rights are not in issue, it is important to remember that arbitration decisions are a product of their time. Legislation changes and jurisprudence evolves over time, and a decision that was right when made may no longer be right today. Every decision must therefore be read with due regard to the legislative 11 and jurisprudential context within which it was made, and the older the decision the more carefully it must be read. (b) The Case Law 26. The Court of Appeal's watershed decision in Orillia Soldiers Memorial Hospital has overtaken the earlier arbitral jurisprudence cited (i.e. Re York Farms, supra, Re Caressant Care Nursing Home, supra, Re Children's Aid Society of Algoma, supra, Chelsey Park Oxford, supra, Re Miracle Food Market, supra, Re Kingston Reg. Ambulance Service, supra, Re Clarendon Foundation, supra, Re Renfrew County RC. Sep. School Bd., supra, Re Timmins (City), supra). 27. The first Ontario ESA was enacted in 1968 (effective January 1, 1969). Designed for employees not covered by a collective agreement, it amalgamated existing minimum standards legislation, and added some new standards. The 1968 ESA established standards for minimum wages, hours of work, overtime and overtime premium pay, vacations with pay, holiday pay, and equal pay for equal work for most workers. (See, Thomas, Mark, Setting the Minimum: Ontario's Employment Standards in the Postwar Years, 1944 -1968. Labour/Le Travail .54 (2004): 60 pars. 21 Feb. 2011; < http : / /www.historycooperative.org /journals /llt/54 /thomas.html >.) Notwithstanding that there was an ESA in effect at the material times, most of the cases cited make no reference to that legislation. 28. The first Ontario Human Rights Code was enacted in 1962. It was one of the first statutes of its kind in Canada. Prior to 1962, various statutes dealt with different kinds of discrimination. The Code amalgamated these into a single statute and added some new protections. Notwithstanding that there was a Human Rights Code in effect at the material times the only cited arbitration decisions prior to 2009 which made any reference to the Code of the day are the pre - Orillia Soldiers Memorial Hospital decision in Clarendon Foundation, and the post- Orillia Soldiers Memorial Hospital decision in Providence Care. I recognize that before s. 48(12) of the Labour Relations Act was amended to include clause 0), and indeed until the Supreme Court of Canada's decision in Parry Sound (District) Social Services Administration Board v. O.P.S.E. U., Local 324, [2003] 2 S.C.R. 157, there were serious questions about the limits on an arbitrator's jurisdiction to apply the Code in a grievance arbitration proceeding. I nevertheless find it surprising that so few of the cases contain any reference to the Code. 29. The pre - Orillia Soldiers Memorial Hospital arbitral jurisprudence purports to be premised on the earned benefit principle; namely, that holiday, pay, vacation pay and other benefits that are part of a collective agreement compensation package for 12 employees are earned and cannot be taken away. These decisions propose the theory that, unless the collective agreement specifies otherwise, a sick or injured employee who cannot attend work nevertheless "earns" such benefits in the same way and to the same extent as an employee who attends and performs work. There can be no dispute that a benefit cannot be taken away once it is earned, but the question is: when is a benefit earned? Both the pre- Orillia Soldiers Memorial Hospital arbitral jurisprudence and many of the subsequent decisions in effect posit that holiday pay, vacation pay, and other compensation benefits are "earned" by virtue of continued employee status, and that services need not actually be rendered. This jurisprudence adopts the term "earned" without either considering its plain and ordinary meaning (i.e. "to gain from the performance of service, labor, or work" or "to acquire or deserve as a result of effort or action "), or explaining how an employee who provides no service "earns" benefits in the same way as an employee who works. They simply state that it is so. 30. This jurisprudence does not distinguish between wages, which are also earned, and earned benefits. Why under the "in the same way and to the same extent as an employee who attends and performs work" theory wouldn't an absent employee be entitled to wages in the same way as benefits? Perhaps more importantly, why on the status theory wouldn't an employee absent for reasons other than illness or injury be in an equally good position to claim earned benefits? 31. Further, rooted as it is in employee status, the analysis in at least the pre- Orillia Soldiers Memorial Hospital arbitral jurisprudence does not consider the extent to which an earned benefit has in fact been earned. It simply posits that it is either earned or it is not (Caressant Care Nursing Home and Children's Aid Society of Algoma, for example). Indeed, a theory based on employee status need not consider that issue. 32. With respect, it is patently not the case that an employee who has been unable to attend work because of illness or injury has earned holiday pay, vacation pay, or other compensation benefits to the same extent as an employee who has actually worked, or that he has earned benefits at all. While an argument might be constructed in favour of an employee whose absence from work for reasonable cause is relatively brief, the fallacy of the argument is revealed as it unravels in the case of a lengthy absence. For example, how can it be said that an employee who has not worked for a year, even if through no fault of his own, has earned payment for all statutory or collective agreement holidays, or any other benefits that normally accrue to employees as part of their compensation package over the course of a year "just as much" (per the 1970 decision in York Farms) as an employee who worked that entire year? Unless the collective agreement provides otherwise the absent employee "earned" little or nothing during his year of absence. 13 33. Clarendon Foundation was the first of the cases cited to make any reference to Human Rights Code considerations. The collective agreement in that case provided that vacation pay was to be calculated on the basis of an employee's "total pay in the previous year ". The arbitrator correctly concluded that WSIA benefits did not constitute part of an employee's "total pay", and that the employer was therefore not required to include workers' compensation benefits in an employee's vacation pay calculation. However, when he went on to consider adverse effect or constructive discrimination and the Supreme Court of Canada's decision in Ont. Human Rights Comm. v. Simpsons -Sears [1985] 2 S.C.R. 536 he selected (at pages 280 -281) all employees "in general" rather than all employees not actively at work as the appropriate comparator group, and determined the grievance in favour of the union on the basis of the wages the affected employees would have earned if they had not been absent from work. 34. Clarendon Foundation is wrongly decided and cannot be followed because it has been overtaken by and is inconsistent with the Court of Appeal's decision in Orillia Soldiers Memorial Hospital. 35. The Court of Appeal's focus in Orillia Soldiers Memorial Hospital was on adverse effect discrimination. The Court considered whether collective agreement provisions concerning seniority, service accrual, and employer contributions to subsidized benefit plans which provided that employees on unpaid leave for longer than a stated period lost seniority and service accrual, and associated benefits under the agreement, discriminated against employees on leave because of disability in a manner contrary to the Code. Service accrual was used to place employees on the wage grid and to calculate vacation pay. The unanimous Court held that the proper comparator group for service accrual purposes was other employees on unpaid leave, not all other employees, and that distinguishing between employees who were working and those who were not was not discrimination prohibited by the Code. The Court held that the collective agreement provisions constituted constructive discrimination, but that this was justified by the bona fide occupational qualification of providing services for compensation and that no accommodation was possible in circumstances where the employees were incapable of performing any work. That is, service was (and prima facie is) directly related to compensation. The Court viewed the seniority provision differently because its purpose was not directly related to compensation. Seniority was a factor, albeit not the only factor, when it came to transfers, filling vacancies and employees' layoff rights under the collective agreement. The Court of Appeal held that for seniority purposes, the proper comparator group was all other employees because it related to the status of being an employee and directly affected employment access issues, and was not directly related to compensation and there were no requirements attendant to the exercise of seniority that disabled employees could not fulfill while absent from work. 14 36. Although the Court of Appeal in Orillia Soldiers Memorial Hospital disagreed (at paragraph 44) with the interpretation of s. 11 of the Code in Re Versa Services Ltd. and Milk and Bread Drivers, Dairy Employees, Caterers, and Allied Employees Union, Loc. 647 (1994) 39 L.A.C. (4th) 196 (R. Brown), and (at paragraphs 49 -52) with the distinction the arbitrator in that case drew between participation and compensation, the Court drew a compensation distinction between employees who "participate" in employment and employees who do not. In that respect, the Court of Appeal stated (at paragraphs 27 and 31 -33) that: 27 ... It is not prohibited discrimination to distinguish for purposes of compensation between employees who are providing services to the employer and those who are not. It would be prohibited discrimination for the employer to provide different compensation to different groups of employees providing services, if the distinction was based on a prohibited ground ... 31 In the case presently before the court, the purpose of the employer contributions to benefit plans is to provide an additional form of compensation in exchange for work. Having chosen to provide this form of compensation, the employer could not discriminate on a prohibited basis. However, the employer could distinguish based on the reason for providing the compensation: work. On its face, discrimination would exist if the employer provided different levels of compensation for work because of handicap. Likewise, it would constitute discrimination if the employer provided different levels of compensation for not working because of handicap. But, in this context it makes no sense to compare working employees with those not working. As Sopinka I said, comparing the benefits allocated employees pursuant to different purposes is not helpful in determining discrimination. 32 I also do not find it helpful to attempt to isolate different elements of the compensation package such as employer contributions to premiums, vacation pay, and wages and ascribe different purposes to each so as to create a discrimination argument. They are all part of the compensation package negotiated by the parties in exchange for work by the employees. When the employee is not working, different considerations and different forms of payment may apply. For instance, employees may receive workers' compensation or long -term disability payments. 33 In essence, the appellant's argument is that the income replacement plans should include payment of these premiums. This is a matter to be determined in the collective bargaining process. It would only be covered by the Human Rights Code if the income replacement plan itself discriminated on a prohibited basis (as in Brooks and Gibbs). That is not the case here. Leaving aside the difference between employees on workers' compensation and those on long -term disability, which is not properly before this court, the benefits provided to handicap [sic] employees not providing work are more generous than to other employees not providing work. Therefore, there is no discrimination on a prohibited basis within the meaning of s. 5(1) of the Code. Accordingly, it is unnecessary to consider whether the employers could rely upon the justification in s. 17 of the Code. (Emphasis added.) 15 37. This led the Court to conclude that the appropriate comparator group was all employees on unpaid leave and to consider the issue of adverse effect discrimination: 39 The starting point for properly understanding adverse effect or constructive discrimination is Simpsons -Sears [(1985), 23 D.L.R. (4th) 321 (S.C.C.)]. In that case, at p. 332, McIntyre J. described adverse effect or constructive discrimination in the following terms: On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force ... An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply. 40 Adverse effect discrimination as explained in Simpson -Sears and constructive discrimination as codified in s. 11 appear to cover the same ground. Both concepts are premised on a neutral rule or standard that applies equally to all employees but has a discriminatory effect because it imposes a penalty on a group because of some group characteristic protected by the Code. 53 In my view, it is possible to find that the neutral rule in this case has a discriminatory effect within the meaning of s. 11(1). To repeat, the neutral rule may be stated as follows: the employer contributes toward premium coverage of participating eligible nurses in the active employ of the hospital. This rule has the effect of requiring the group of employees identified by the prohibited ground of discrimination to assume the burden of paying the entire contributions for benefits if they wish to maintain coverage. Admittedly, these employees are treated no differently than other employees on unpaid leave of absence, the difference is that these employees are adversely effected by the rule because of their disability. The issue then is whether the employers are entitled to the BFOQ justification in s. I I(1)(b). hl my view, they are. I reach this conclusion not because of the distinction drawn in Versa Services between compensation and participation, but rather by having regard to the nature of the accommodation required for this kind of constructive discrimination. 60 As regards constructive or adverse discrimination, for the reasons set out above in relation to contributions to benefits plans, there is no violation of s. 11. Again, as I understand the agreed facts, these employees are on long -term disability because they are unable to provide any service. Thus, there is no amount of accommodation that the employer could provide that would overcome the fundamental problem that these 1 employees are unable to work. This term of the collective agreement is not in breach of the Code. 38. The Atlantic Packaging Products Ltd., Abbott Laboratories Ltd., Essex (County), Algoma Steel, Atlantic Minerals Ltd., Ontario Lottery and Gaming Corp., Providence Care, and Toronto Transit Commission decisions cited by the Union were decided after Orillia Soldiers Memorial Hospital. 39. The decisions in Algoma Steel; Atlantic Minerals Ltd., and Essex (County) offer no assistance. Algoma Steel was decided on the basis of the unique wording of the collective agreement in that case. Atlantic Minerals Ltd is a case from a different jurisdiction (Newfoundland). Not only do decisions from another labour relations jurisdiction offer little or no assistance in cases which raise an issue of statutory or collective agreement interpretation, the decision in that case also applied the specific wording of the collective agreement. In Essex (County) the issue was whether employees on a WSIA absence were entitled to holiday pay for holidays during that absence. The decision in that case disagreed with the earned benefit analysis and denied grievance on basis of collective agreement language (without reference to the ESA) and therefore offers no assistance. 40. Abbott Laboratories Ltd. simply applied Atlantic Packaging Products Ltd. which avoided the double payment issue which subsequently troubled Arbitrator Knopf in Toronto District School Board by positing a presumption that employees who are absent from work and receiving sick benefits are entitled to holiday pay for holidays which occur during their absence unless the collective agreement specifies otherwise because holiday pay and sick benefits are separate earned entitlements. The Atlantic Packaging Products Ltd., approach implies the employee status theory with which I disagree as aforesaid, and the fact that holiday pay and sick benefits are separate entitlements does not suggest the presumption posited. I respectfully doubt that such a presumption is either necessary or appropriate. 41. Similarly, although the decision in Ontario Lottery and Gaming Corp. correctly distinguished between vacation time and vacation pay, it is not at all clear that the subsequent analysis leads to the conclusion reached in that case. 42. In Providence Care the question was whether vacation entitlement continued to accrue to employees on non -WSIA sick leave not covered by HOODIP benefits as such (i.e. during period which under HOODIP is covered by Employment Insurance Act sick leave benefits). Under the collective agreement in that case, paid vacation entitlement depended on continuous "service" which was defined as the "employee's length of continuous service with the Employer from the most recent date of hire ". (I observe that 17 it is generally not helpful to include the word being defined in the definition.) The arbitrator concluded (without reference to the ESA, and notwithstanding that Article 27.3(a) of the collective agreement specifically provided that an employee did not accumulate service or seniority for purposes of vacation entitlement or sick leave benefit for periods of absence in excess of 30 days unless otherwise specified in the agreement) that vacation entitlement was based on employee status, not on work performed or active employment. With respect, the correctness of this conclusion is questionable. However, the arbitrator then considered Code and correctly applied Orillia Soldiers Memorial Hospital, holding that providing different compensation to those employees not actively working is not prohibited discrimination (and that differential treatment within the non- working employee comparator group is not prohibited if legitimate different considerations apply). 43. The 2009 decision in Toronto Transit Commission was the first decision cited by either party which referred to both the ESA and the Code. The collective agreement in that case provided a vacation entitlement based on completed years of service, and vacation pay as the greater of the number of regular hours of work at the wage rate in effect when the vacation is taken and the average weekly earnings (excluding voluntary overtime) during the previous calendar year. It also provided that a regular employee with earnings in less than 46 of the 52 pay periods in the previous calendar year would be paid vacation pay on the basis of 40 hours per week of vacation entitlement at the basic wage rate in effect when the vacation is taken. With respect to statutory holiday pay, the collective agreement in that case provided that employees were ineligible for that benefit if they were absent for 30 continuous calendar days or more (excluding vacation) immediately prior to the holiday. 44. After explaining (at paragraphs 26 -28) the approach to interpretation (with reference to the Ontario Court of Appeal's decisions in 3869130 Canada Inc. v. I. C.B. Distribution Inc., (2008) O.J. No. 1947; Dunn v. Chubb Insurance Company of Canada et al (2009) O.J. No. 2726; The Plan Group v. Bell Canada, (2009) O.J. No. 2829), the arbitrator wrote the following (at paragraphs 42 -43) about the holiday pay issue: 42 The remaining qualifying conditions in Section 14 of the Collective Agreement have now been overtaken by Section 26(2) of the Employment Standards Act. It was common ground between the parties at the hearing that the provisions of the Employment Standards Act stipulate minimum standards which, by reason of Section 5 cannot be contracted out of. Section 26(2) is clear that no qualification of "days worked" is required in order to be accorded holiday pay. This is a minimum standard which is binding, upon the parties and cannot be cast aside by contract. Presence at work before or after a holiday can no longer be stipulated in a collective agreement as a condition precedent to the payment of holiday pay. The above conditions in Section 14 of the Collective Agreement are, accordingly, of no force and effect. 18 43 In my opinion, the plain meaning of Section 14 is that employees who are absent from work by reason of an occupational injury who are either awaiting the outcome of their applications or are in receipt of WSIB benefits under the Workplace Safety and Insurance Act are entitled to both statutory and designated holidays with pay. I should note that no distinction was drawn between the statutory and designated holidays under the Collective Agreement and both parties proceeded on the assumption that the provisions of the Employment Standards Act applied to both categories of holidays. (Emphasis added.) 45. The arbitrator went on to conclude that employees were entitled to vacation whether they were on active or inactive status, and to vacation pay to the extent that they had earnings, not including WSIA benefits, in the previous calendar year in accordance with the formula provided in the collective agreement (paragraphs 51 -52). After observing that distinguishing between employees who are providing services and those who are not is not prohibited discrimination per Orillia Soldiers Memorial Hospital, the arbitrator determined that his conclusion made it unnecessary to deal with the Code issues raised with respect to entitlement to vacation time or vacation pay. (He did not mention statutory holiday pay in that respect). 46. I am not sure what the arbitrator in Toronto Transit Commission meant when he wrote in paragraph 42 that: "Presence at work before or after a holiday can no longer be stipulated in a collective agreement as a condition precedent to the payment of holiday pay." That is precisely what s. 26(2) (or s. 29(4) as applicable) of the ESA requires (explicitly subject to the reasonable cause for absence exception), and there is nothing wrong with replicating that statutory requirement in a collective agreement. Equally, there is nothing wrong with including a more generous holiday pay entitlement in a collective agreement. Section 5 of the ESA prohibits contracting out of the ESA to provide a lesser benefit than provided for by the ESA. The ESA specifically permits (in s. 5(2)) contracting out to provide a greater benefit. 47. Further, in concluding as he did in paragraph 43 that employees receiving WSIA benefits are entitled to holiday pay, the arbitrator did not apply or even refer to s. 24 of the ESA, which provides (in s. 24(1)(a)) a formula for calculating holiday pay entitlement where no more beneficial formula is provided in the collective agreement. Presumably, he determined that the collective agreement in that case provided a greater benefit. 48. Waterloo Furniture Components, supra, and Messier -Dowty Inc., supra, followed soon after Orillia Soldiers Memorial Hospital. The issue in Waterloo Furniture Components concerned the vacation pay entitlement of an employee who had been off work with a compensable injury. The collective agreement provided that employees were entitled to two weeks' vacation time and to "receive as vacation pay a sum equivalent to four per cent of the employee's earnings during the twelve month period immediately 19 preceding July 1st in such year." The union in that case argued that excluding WSIA benefits payments from the vacation pay calculation was adverse effect or constructive discrimination contrary to the Code. The arbitrator in that case referred to and considered the Clarendon Foundation and Orillia Soldiers Memorial Hospital decisions, and also the decisions in O.N.A. v. Etobicoke General Hospital, (1993) 14 O.R. (3d) 40 (Ont. Div. Ct.), Re Versa Services Ltd., and Re Porcupine and District Children' Aid Society and Canadian Union of Public Employees, Local 2196, (1996) 56 L.A.C. (4th) 116 (R. Brown). Arbitrator Baum declined to follow Clarendon Foundation, rightly concluding that the Court of Appeal in Orillia Soldiers Memorial Hospital had rejected the reasoning in Versa Services Ltd. and concluded that the bona fide occupational qualification provisions in clause I I(1)(b) justified differentiating between employees actively at work and those on disability leave for benefits purposes. Arbitrator Baum held that the grievance in that case in effect asked that an employee who is disabled and receiving WSIA benefits have a portion of wages; namely, vacation pay, topped up so that it is equal to what active -duty employees received, and concluded that he was bound by the Court of Appeal's decision that this would actually result in reverse stereotyping and therefore violate the principles of the Code. 49. In Messier -Dowry Inc. the grievor was absent from work and receiving workers' compensation benefits for nine months. The employer granted him his full three -week vacation entitlement but calculated his vacation pay on a basis that did not include the workers' compensation payments. The Union grieved that the appropriate comparator group was all employees and that this calculation entitlement was discriminatory. Arbitrator Knopf disagreed. She applied the Orillia Soldiers Memorial Hospital analysis and concluded that vacation pay is a form of compensation, that linking vacation pay to work performed is a reasonable and bona fide occupational requirement, and that when it comes to compensation the same considerations do not apply to employees who are working and those who are off because of a compensable injury. Accordingly, the fact that employees who are off work because of a compensable injury receive less vacation pay than employees who are actively at work is not discrimination contrary to the Code. 50. Arbitrator Knopf revisited the interplay between vacation entitlement and workers' compensation benefits some five years later in Toronto District School Board. The question in that case was: what happens to an employee's vacation entitlement under a collective agreement when the employee is off on a WSIA compensable leave and cannot use the vacation entitlement due to that absence, and the agreement does not provide for any "carryover" of vacation entitlement? Arbitrator Knopf concluded that such an employee receives WSIB benefits calculated on the basis of 52 -weeks of earning capacity which includes the full vacation entitlement, and that the employee is not also entitled to be paid for unused vacation time. 20 51. I respectfully agree with Toronto District School Board and Messier -Dowty Inc. (c) Commentary 52. One thing that all of the cases cited agree upon is that the words of the collective agreement are crucial to the determination of the issue. The words of the collective agreement, including terms such as "pay ", "earnings ", "wages ", etc. must be given their plain and ordinary meaning (unless the context suggests otherwise). Although the primary focus must be on the collective agreement, the legislation, in this case the ESA, the Code and the WSIA, cannot be ignored. Accordingly, all of the cases decided on the issues raised in the grievances before this Board without reference to this legislation, particularly the ESA and the Code, must be read carefully and with that fully in mind. 53. With respect, decisions such as York Farms, Kingston Reg. Ambulance Service, Essex (County), and Clarendon Foundation are not good law. The decisions in Caressant Care Nursing Home, Children's Aid Society of Algoma, and Toronto Transit Commission did not take the analysis far enough, and failed to distinguish between vacation time and vacation pay, or to fully consider the application of the ESA. 54. Decisions such as Atlantic Packaging Products Ltd. and Abbott Laboratories Ltd., and Chelsey Park Oxford and the cases referred to therein serve to demonstrate how arbitrators have considered whether working a last shift before and a first shift after a paid holiday is a personalized or a generic requirement, and whether employees on a WSIA compensable leave are excused from such a requirement. In addition to the difficulties with Atlantic Packaging Products Ltd. and Abbott Laboratories Ltd. already mentioned (paragraph 40, above), these decisions, and particularly Chelsey Park Oxford (and the decisions quoted extensively in the latter) demonstrate how arbitrators have struggled with questions of earned benefit entitlement during or subsequent to a lengthy compensable absence, in an attempt to achieve a result perceived to be both consistent with the collective agreement and equitable. With respect, the results have been both largely unsatisfactory and unnecessary from a principled perspective. The struggles have been unnecessary because the issue is one of collective agreement and statutory rights — not equity or arbitrator empathy, and because the guidance in the legislation went unheeded. Sometimes the answer to a collective agreement question lies in the governing legislation — which is why it cannot be ignored. 55. Several things can no longer be denied. Compensation consists of more than just wages, but all of the components of the compensation package are earned benefits. Unless a collective agreement specifically provides otherwise entitlement to an earned 21 benefit depends on more than simple status as an employee. Earned benefits are just that: benefits which have been earned, and entitlement to an earned benefit depends on actual service in the sense of work performed to earn the benefit in issue. An earned benefit is by definition a gain derived from the performance of service, labor, or work; that is, a benefit given in return for services rendered. 56. There is no doubt that an employee who is totally disabled and unable to work has a reasonable excuse for being absent from work. There is no doubt that in the absence of an express termination of the employment relationship an employee who is absent from work due to a compensable injury or illness continues to have the status of an "employee" for all purposes. There is equally no doubt that this does not lead to the conclusion that an employee who is or has been absent from work for reasonable cause or excuse is entitled to an earned benefit as though he is not or was not absent because the employee has not in fact earned it. The first question is whether the employee is eligible for the benefit. If the answer to the question is "no" that is the end of the inquiry. If the answer to that question is "yes ", a second two -part question must be asked; namely, is the employee entitled to the benefit at all, and if so, to what extent (that is, to what extent has it been earned)? 57. Vacation time and vacation pay are related but separate benefits (s. 33 of the ESA, Ontario Lottery and Gaming Corp., National Steel Car Limited, Toronto Transit Commission). 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 (s. 5 of the ESA). 22 58. The plain and ordinary meaning of "wages" is the money paid for the performance of work. WSIA benefits are not wages. The Workplace Safety and Insurance Act, 1997 is an entirely employer funded statutory no -fault workplace insurance scheme for employers and their workers which pays benefits in respect of a work - related injuries or disabilities. Among other things, it provides disability benefits, including wage -loss replacement or loss of earnings benefits for workers injured on the job or who contract an occupational disease. WSIA benefits are classified as non - taxable income for tax purposes. It is now beyond dispute that WSIA benefits are not "earnings" or "wages ", and do not constitute part of an employee's "gross regular wages ". As a matter of law, any absence from work not paid for by the employer, including one due to illness or injury, is considered to be on an unpaid leave of absence for collective agreement purposes, whether or not the employee receives WSIA or other disability benefits during the absence. (d) Determination (i) Paid Holiday Pay 59. Article 21.01 of the collective agreement in this case provides bargaining unit employees with 11 paid holidays, including all the statutory holidays under the ESA. Article 21.04 specifies that employees must work "their last regularly scheduled day of work before and their first regularly scheduled day of work after the holiday" unless their absence is "authorized by the Employer ". This is not inconsistent with the ESA. I am satisfied that a WSIA compensable absence is deemed to have been authorized by the Employer. An employee on a WSIA compensable absence is therefore entitled to any paid holiday that occurs during the absence. Of course, the employee is not at work so by itself that entitlement means very little or nothing. The real question concerns the entitlement to payment for that holiday. The collective agreement says nothing about the employee's entitlement to holiday pay — which as I have already observed is not the same thing (see paragraph 57, above). However, the ESA does, and in the absence of any greater benefits under the collective agreement the ESA applies in that respect. 60. Section 24(l)(a) of the ESA specifies that the amount of holiday pay that an employee is entitled to is "the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20 ". On the facts posited for purposes of this Award (paragraph 7, above), three paid holidays December 25 and December 26, 2009, and January 1, 20 10) occurred while an employee was off work from the end of November 2009 until on or about January 27, 2010. It is not clear when exactly the absence began. 23 61. All paid holiday lieu days are paid. Under both the collective agreement and the ESA an employee is entitled to holiday pay or a paid lieu day — not both. 62. Assuming the employee's work week ran Sunday through Saturday, the four week period before the work week in which the first two paid holidays occurred began on Sunday, November 22, 2009. The employee is entitled to the total amount of his regular wages earned and vacation pay payable during the four weeks beginning November 22, 2009 divided by 20. In the case of the third paid holiday (January 1, 2010) the employee is entitled to the total amount of his regular wages earned and vacation pay payable during the four weeks beginning November 29, 2009 divided by 20. The employee is not entitled to any lieu days. (ii) Vacation Time Off ( "VTO ") and Vacation Pay 63. Section 33 of the ESA entitles an employee to "at least two weeks [of vacation] after each vacation entitlement year" an employee completes, and section 35.2 entitles an employee to vacation "equal to at least 4 per cent of the wages, excluding vacation pay" which has been "earned during the period for which the vacation is given ", the latter being the vacation entitlement year referred to in section 33. That is, the ESA distinguishes between vacation time (minimum of two weeks) and vacation pay (minimum of 4% of "wages "). Although the collective agreement in this case does not specifically distinguish between vacation time and vacation pay, Article 22 is structured in a way which clearly intends such a distinction. Although the paid vacation benefit is advanced to employees at the start of every calendar year, the collective agreement provides an earned vacation pay benefit in a manner which is consistent with the general principle that employees earn vacation pay as, not before, they earn wages, and which is consistent with but better than the vacation benefit provided by the ESA. 64. Under the collective agreement, bargaining unit employees are entitled "up to" the Article 22 specified percentage of "gross regular wages" earned in the prior year. On January 1 of each year an employee is advanced a bank of VTO in accordance with the schedule in Article 22 which he can draw on during the current year. That provision and s. 33 of the ESA operate together to give an employee vacation time off as specified in Article 22, but vacation pay or "earnings" (the collective agreement term) on the basis of the gross regular wages actually earned during the previous year. The collective agreement vacation pay benefit is equal to or greater than the one guaranteed by the ESA. That is, an employee is entitled to vacation time off based on employee status, regardless of time worked or earnings, but to vacation pay only in accordance with actual service; that is, the specified percentage of the employee's gross regular wages — which do not include WSIA benefits. 24 65. Article 26.01(a) specifies that an employee who receives WSIA loss of earnings benefits continues to accumulate vacation and "service" during the absence from work. It operates to modify the "active" requirement in Article 22. The question begged is: what exactly does this mean? 66. Article 12.01 of the collective agreement defines seniority in terms of continuous service from the "last date of hire ", and "service" in terms of length of employment from the "date of hire ". That is, service depends on status as an employee from the original date of hire, and seniority depends on continuous employment status from the most recent date of hire. This is consistent with Article 12.06 which specifies the circumstances in which seniority, but not service, is lost. Notwithstanding that this could lead to some curious results (for example, an employee's Article 22 vacation entitlement continues to accrue during a break in employment), the collective agreement definitions contemplate breaks in employment which affect seniority (and therefore seniority rights under, for example, Article 13 "posting of Vacancies ", Article 14 "Layoff', and Article 15 "Overtime "), but not service (and the rights or entitlements contingent upon service under, which appear to be limited to vacation under Article 22 "Vacation "). Under the collective agreement service is a temporal concept, and the plain and ordinary meaning of Article 26.01(a) is that an employee on an absence during which he receives WSIA benefits continues to accumulate vacation time credits during the absence, but the provision does nothing to modify the application of Article 22 for the purposes of calculating such an employee's vacation pay entitlement. 67. Under Article 22 an employee is entitled to vacation time off according to his years of service (not seniority), but his entitlement to vacation pay entitlement is based on the specified percentage of his "gross regular wages" during the prior calendar year. Since there is nothing in the collective agreement that specifies otherwise, an employee's "gross regular wages" do not include WSIA benefits. An employee to whom Article 26.01(a) applies therefore continues to accumulate vacation time in accordance with Article 22 and is entitled to all of the VTO specified by that provision, but he is only entitled to vacation pay as a percentage of his "gross regular wages" during the previous calendar year — that is, also in accordance with Article 22. 68. To return to the example posited for purposes of this Award, the employee hired in 1999 would not have completed 10 years of service as at January 1, 2010. On January 1, 2010, he was therefore entitled to vacation time and pay in accordance with Article 22.02; namely, to up to 120 hours vacation time paid at 6% of his gross regular wages in 2009. I interpret this to mean 120 hours of vacation time, but vacation pay totaling 6% of 2009 gross regular wages, which does not include anything for any period of absence during which he did not receive payments directly from the Employer. 25 (iii) Personal Time Off (PTO") 69. Article 23.01 specifies what PTO is for. Article 23.03 specifies that paid PTO accrues at the rate of 2% of gross regular wages to a maximum of 40 hours per year. Article is structured differently than Article 22 in that Article 23 does not distinguish between time and paid time. All PTO is paid. 70. The Article 23.04 requirement that unused PTO in excess of 80 hours at the end of each calendar year must be paid out to the employee makes it clear that up to 80 hours of unused accrued PTO is carried over from year to year. 71. The employee posited as an example for purposes of this Award would be entitled to exactly what provides. He is entitled to have accrued PTO in the amount of 2% of his regular wages (i.e. not including WSIA benefits) in 2009, to a maximum of 40 hours, and to be paid out the value of any banked amount in excess of 80 hours at the end of each calendar year. (iv) The Hunzan Rights Code 72. It is well established that human rights legislation has near - constitutional status which must be liberally interpreted. Exceptions to or limitations on rights enshrined in such legislation are strictly and narrowly construed. The purpose of human rights legislation is to ensure equal rights, opportunities and treatment in all matters, including employment. Human rights legislation protects individuals or groups from being disadvantaged on the basis of a characteristic that the legislation specifies is an inappropriate basis for distinguishing between people. Because human rights are fundamental, "discrimination" has been given a broad and purposive definition, both generally and specifically under the Code. In the employment context, discrimination occurs whenever a right, obligation or condition is denied to or imposed on some employees but not others on the basis of a prohibited ground for differential treatment, and there is no acceptable rational basis for the differentiation. (See, for example, Andrews v. Law Society of B. C., [1989] 1 S.C.R. 143 (S.C.C.). 73. Both direct and indirect discrimination is unlawful. Indirect discrimination is often referred to as "adverse effect" discrimination. It is more insidious and often more difficult to detect. Arbitrators must be sensitive to the effects of collective agreement provisions, and employment rules or policies which appear to be neutral, to ensure they do not actually treat some employees differently on a prohibited basis. As the Supreme 26 Court of Canada has repeatedly pointed out, same treatment is not necessarily equal treatment. Indeed, true equality may require differential treatment. 74. The purpose of clause I0(1)(e) of the Code is to protect employees who suffer work related injuries or disabilities that are compensable under the WSIA. Operating in conjunction with subsection 5(l), this provision requires that such employees not be adversely affected in employment because they have suffered a work - related injury. That is, a work - related compensable disability cannot be held against an employee in relation to an employment right or benefit. 75. As the Court of Appeal pointed out in Orillia Soldiers Memorial Hospital, the proper comparator group must be determined before the discrimination issue is addressed. Having regard to Orillia Soldiers Memorial Hospital, by which I am bound, I am satisfied that the appropriate comparator group for purposes of an earned benefit comparison is all other employees on an unpaid leave of absence — not all employees. 76. There is no suggestion that employees absent from work and receiving WSIA benefits are being treated any differently for holiday pay, vacation pay, or PTO purposes than any other employee on an unpaid (by the Employer) leave of absence. 77. I am satisfied that there is nothing patently discriminatory about the collective agreement treatment for holiday pay, vacation pay, or PTO purposes of employees who are absent from work due to a compensable illness or injury, whether or not they receive WSIA or other benefits in that respect during the absence. I am equally satisfied that there is no adverse affect discrimination that is prohibited by the Code. IV. CONCLUSION 78. In the result, the Union's complaint that the Human Rights Code has been and is being violated is dismissed. 79. The policy grievance is otherwise allowed to the following limited extent: (a) TMS BOARD DECLARES THAT an employee who is absent from work and receiving WSIA benefits is entitled to holiday pay for any paid holiday recognized in Article 21.01(a) of the collective agreement in the amount of his regular wages earned and vacation pay payable during the four weeks before the week in which the paid holiday occurs divided by 27 20 — unless the Employer's current practice provides a greater benefit, in which case the employee is entitled to that benefit. (Paragraph 62, above.) (b) THIS BOARD DECLARES THAT an employee who is absent from work and receiving WSIA benefits is entitled to the amount of vacation time according to his years of service as specified in Article 22 of the collective agreement, and to vacation pay in the amount of the specified associated percentage of his gross regular wages (not including WSIA benefits) earned in the previous calendar year. (Paragraphs 67 -68, above.) (c) THIS BOARD DECLARES THAT an employee who is absent from work and receiving WSIA benefits is not entitled to accrue personal time off under Article 23 of the collective agreement during the period of that absence. Such an employee is entitled to accrue personal time off each year at the rate of 2% of the employee's gross regular wages to a maximum of 40 hours per calendar year, and to be paid out any unused earned PTO in excess of eighty (80) hours as at December 315` of each year. (Paragraph 71, above.) (d) THIS BOARD ORDERS THE EMPLOYER to administer and apply the collective agreement in accordance with this Award. 80. This Board shall remain seized for purposes of rectification, and to deal with any disputes or issues concerning the implementation or administration of this Award. DATED AT TORONTO THIS 10TH DAY OF MAY 2011. *: s= George T. Surdykowski — Chair c2 , W.&-, I Agree Judith Rundle — Employer Nominee �iiwa�ci �'enrocu� I Agree Edward Seymour — Union Nominee 28 Employment Standards Act, 2000 PART I DEFMTIONS Definitions 1. (1) In this Act, "public holiday" means any of the following: 1. New Year's Day. 2. Good Friday. 3. Victoria Day. 4. Canada Day. 5. Labour Day. 6. Thanksgiving Day, 7. Christmas Day. 8. December 26. 9. Any day prescribed as a public holiday; ( "jour ferie ") "public holiday pay" means an employee's entitlement with respect to a public holiday as determined under subsection 24 (1); ( "salaire pour jour ferie ") "regular wages" means wages other than overtime pay, public holiday pay, premium pay, vacation pay, termination pay and severance pay and entitlements under a provision of an employee's contract of employment that under subsection 5 (2) prevail over Part VIII, Part X, Part XI or Part XV; ( "salaire normal ") "standard vacation entitlement year" means, with respect to an employee, a recurring 12- month period that begins on the first day of the employee's employment; ( "annee de reference normale ") "stub period" means, with respect to an employee for whom the employer establishes an alternative vacation entitlement year that starts on or after the 0 day on which section 3 of Schedule J to the Government Efficiency Act, 2002 comes into force, (a) if the employee's first alternative vacation entitlement year begins before the completion of his or her first 12 months of employment, the period that begins on the first day of employment and ends on the day before the start of the alternative vacation entitlement year, (b) if the employee's first alternative vacation entitlement year begins after the completion of his or her first 12 months of employment, the period that begins on the day after the day on which his or her most recent standard vacation entitlement year ended and ends on the day before the start of the alternative vacation entitlement year; ( "periode tampon ") "vacation entitlement year" means an alternative vacation entitlement year or a standard vacation entitlement year; ( "annee de reference ") "wages" means, (a) monetary remuneration payable by an employer to an employee under the terms of an employment contract, oral or written, express or implied, (b) any payment required to be made by an employer to an employee under this Act, and (c) any allowances for room or board under an employment contract or prescribed allowances, but does not include, (d) tips and other gratuities, (e) any sums paid as gifts or bonuses that are dependent on the discretion of the employer and that are not related to hours, production or efficiency, (f) expenses and travelling allowances, or (g) subject to subsections 60 (3) or 62 (2), employer contributions to a benefit plan and payments to which an employee is entitled from a benefit plan; ( "salaire ") "work week" means, M (a) a recurring period of seven consecutive days selected by the employer for the purpose of scheduling work, or (b) if the employer has not selected such a period, a recurring period of seven consecutive days beginning on Sunday and ending on Saturday. ( "semaine de travail ") 2000, c. 41, s. 1 (1); 2001, c. 9, Sched. I, s. 1. (1); 2002, c. 18, Sched. J, s. 3 (1, 2); 2007, c. 16, Sched. A, s. 1; 2008, c. 15, s. 85. No contracting out 5. 1 Subject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void. 2000, c. 41, s. 5 (1). Greater contractual or statutory right If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply. 2000, c. 41, s. 5 (2). PART X PUBLIC HOLIDAYS Public holiday pay 24. (1) An employee's public holiday pay for a given public holiday shall be equal to, (a) the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20; or (b) if some other manner of calculation is prescribed, the amount determined using that manner of calculation. 2000, c. 41, s. 24 (1); 2002, c. 18, Sched. J, s. 3 (12). Premium pay (2) An employer who is required under this Part to pay premium pay to an employee shall pay the employee at least one and one half times his or her regular rate. 2000, c. 41, s. 24 (2). Public holiday ordinarily a working day 26. (1) If a public holiday falls on a day that would ordinarily be a working day 31 for an employee and the employee is not on vacation that day, the employer shall give the employee the day off work and pay him or her public holiday pay for that day. 2000, c. 41, s. 26 (1). Exception (2) The employee has no entitlement under subsection (1) ifhe or she fails, without reasonable cause, to work all of his or her last regularly scheduled day of work before the public holiday or all of his or her first regularly scheduled day of work after the public holiday. 2000, c. 41, s. 26 (2). Public holiday not ordinarily a working day 29. (1) If a public holiday falls on a day that would not ordinarily be a working day for an employee or a day on which the employee is on vacation, the employer shall substitute another day that would ordinarily be a working day for the employee to take off work and for which he or she shall be paid public holiday pay as if the substitute day were a public holiday. 2000, c. 41, s. 29 (1). Restriction (2) A day that is substituted for a public holiday under subsection (1) shall be, (a) a day that is no more than three months after the public holiday; or (b) if the employee and the employer agree, a day that is no more than 12 months after the public holiday. 2000, c. 41, s. 29 (2). Employee on leave or lay -off (2.1) If a public holiday falls on a day that would not ordinarily be a working day for an employee and the employee is on a leave of absence under section 46 [pregnancy leave] or 48 [parental leave] or on a layoff on that day, the employee is entitled to public holiday pay for the day but has no other entitlement under this Part with respect to the public holiday. 2002, c. 18, Sched. J, s. 3 (15). Agreement re: public holiday pay (3) An employer and an employee may agree that, instead of complying with subsection (1), the employer shall pay the employee public holiday pay for the public holiday, and if they do subsection (1) does not apply to the employee. 2000, c. 41, s. 29 (3). Exception (4) The employee has no entitlement under subsection (1), (2.1) or (3) if he or she fails, without reasonable cause, to work all of his or her last regularly scheduled day of work before the public holiday or all of his or her first regularly scheduled day of work after the public holiday. 2000, c. 41, s. 29 (4); 2002, c. 18, Sched. J, s. 3 (16). 32 PART XI VACATION WITH PAY Right to vacation 33. (1) An employer shall give an employee a vacation of at least two weeks after each vacation entitlement year that he or she completes. 2002, c. 18, Sched. J, s. 3 (18). Active and inactive employment (2) Both active employment and inactive employment shall be included for the purposes of subsection (1). 2002, c. 18, Sched. J, s. 3 (18). Where vacation not taken in complete weeks (3) If an employee does not take his or her vacation in complete weeks and the 12 -month period of employment to which the vacation relates begins on or after the day on which section 3 of Schedule J to the Government Efficiency Act, 2002 comes into force, the employer shall base the number of days of vacation that the employee is entitled to on, (a) the number of days in the employee's regular work week; (b) if the employee does not have a regular work week, the average number of days the employee worked per week during the most recently completed vacation entitlement year. 2002, c. 18, Sched. J, s. 3 (18). Same (4) If an employee does not take his or her vacation in complete weeks and the 12 -month period of employment to which the vacation relates begins before the day on which section 3 of Schedule J to the Government Efficiency Act, 2002 comes into force, the number of vacation days to which the employee is entitled shall be determined as follows: 1. If the 12 -month period of employment ends before the day on which section 3 of Schedule J to the Government Efficiency Act, 2002 comes into force, the number of days of vacation to which the employee is entitled shall be determined under subsection (3) of this section as it read before the day on which section 3 of Schedule J to the Government Efficiency Act, 2002 comes into force. 2. If the 12 -month period of employment had begun but not ended before the day on which section 3 of Schedule J to the Government Efficiency Act, 2002 comes into force, the number of days of vacation to which the employee is entitled shall be the greater of, the number of days to which he or she would have been entitled under subsection (3) of this section as it read before the day on which section 3 of Schedule J to the Government Efficiency Act, 2002 comes into force, and 33 ii. the number of days to which he or she would be entitled under subsection (3) ofthis section as re- enacted by section 3 of Schedule J to the Government Efficiency Act, 2002. 2002, c. 18, Sched. J, s.3(18). Alternative vacation entitlement year Application 34. (1) This section applies if the employer establishes for an employee an alternative vacation entitlement year that starts on or after the day on which section 3 of Schedule J to the Government Efficiency Act, 2002 comes into force. 2002, c. 18, Sched. J, s. 3 (I8). Vacation for stub period (2) The employer shall do the following with respect to the stub period: 1. The employer shall calculate the ratio between the stub period and 12 months. 2. If the employee has a regular work week, the employer shall give him or her a vacation for the stub period that is equal to two weeks multiplied by the ratio calculated under paragraph 1. 3. If the employee does not have a regular work week, the employer shall give him or her a vacation for the stub period that is equal to 2 x A x the ratio calculated under paragraph 1, where, A = the average number of days the employee worked per work week in the stub period. 2002, c. 18, Sched. J, s. 3 (18). Active and inactive employment (3) Both active employment and inactive employment shall be included for the purposes of subsection (2). 2002, c. 18, Sched. J, s. 3 (18). 34 W D C; Human Rights Code PART I FREEDOM FROM DISCRIMINATION Employment 5. (1) Every person has a 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, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5). Definitions re: Parts I and H 10. (1) In Part I and in this Part, "disability" means, (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, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co- ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device, (e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; ( "handicap ") "equal" means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination; (legal") Constructive discrimination 35 11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. R.S.O. 1990, c. H.19, s. 11 (1). Idem (2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. R.S.O. 1990, c. H.19, s. 11 (2); 1994, c. 27, s. 65 (1); 2002, c. 18, Sched. C, s. 2 (1); 2009, c. 33, Sched. 2, s. 35 (1). Idem (3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. R.S.O. 1990, c. H.19, s. 11 (3); 1994, c. 27, s. 65 (2); 2002, c. 18, Sched. C, s. 2 (2); 2009, c. 33, Sched. 2, s. 35 (2). Disability 17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability. R.S.O. 1990, c. H.19, s. 17 (1); 2001, c. 32, s. 27 (5). Accommodation (2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. R.S.O. 1990, C. H.19, s. 17 (2); 1994, c. 27, s. 65 (2); 2002, c. 18, Sched. C, s. 3 (1); 2006, c. 30, s. 2 (1). Determining if undue hardship (3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations. 2006, c. 30, s. 2 (3) M APPENDIX "C" Workplace Safety and Insurance Act, 1997 Employment benefits 25. 1 Throughout the first year after a worker is injured, the employer shall make contributions for employment benefits in respect of the worker when the worker is absent from work because of the injury. However, the contributions are required only if, (a) the employer was making contributions for employment benefits in respect of the worker when the injury occurred; and (b) the worker continues to pay his or her contributions, if any, for the employment benefits while the worker is absent from work. 1997, c. 16, Sched. A, s. 25 (1). Workplace Safety and Insurance Board Policy 18- 01 -12: "Employer Contributions to Worker Benefits" provides that the accident employer is obliged to continue contributions to the injured worker's employment benefits for one year following the date of the injury, but specifies that "vacation and sick credits are not considered worker benefits for purposes of the Act."