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HomeMy WebLinkAbout2008-3394.Walsh-Gagnon.12-01-05 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2008-3394, 2009-1599, 2009-1600, 2009-2202 UNION#2008-0154-0011, 2008-0154-0014, 2008-0154-0015, 2009-00154-0014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Walsh-Gagnon) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE M.V. Watters Vice-Chair FOR THE UNION Mihad Fahmy Peggy Smith Law Office Barristers & Solicitors FOR THE EMPLOYER Cathy Phan Ministry of Government Services Labour Practice Group Counsel HEARING February 11, June 14, September 14, 2011. - 2 - Decision [1] At the outset of the hearing, the parties filed the following Agreed Statement of Facts: “1. The Grievor has been employed as a Worker Advisor with the Office of the Worker Advisor-Windsor in the Ministry of Labour since May 22, 2002. 2. The Grievor became a classified Full Time Employee on January 29, 2003. 3. The Grievor reported a claim with the Workplace Safety and Insurance Board for gradual onset of neck, right shoulder, bilateral elbow, and bilateral wrist pains due to the nature of job specifically the amount of writing and note taking that was required. An accident date of February 3, 2003 was established. 4. A NEL assessment took place in July 2007 and the Grievor was assessed a permanent impairment for bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome. This resulted in a 24% non-economic loss award. 5. Between October 2007 and March 2008 the Grievor was on sick leave for her work related injury. During this period she utilized her STSP credits without topping up. This meant that between October 2007 and March 2008 she was receiving 75% of her full time salary. 6. Between March 2008 and July 2008, the Grievor returned to work on modified duties—working 3 hours and 38 minutes, with a caseload reduced to half. During this period of time, the Grievor utilized her sick leave (at 75% of her pay) for the remainder of the workday until they were exhausted in July 2008. 7. On July 10, 2008 the Employer received a medical report from Dr. James H. Roth stating that the arrangement of working half days was a “permanent restriction”. 8. On July 15, 2008 the Grievor exhausted her STSP credits. - 3 - 9. In July 16, 2008, the Employer converted Ms. Walsh-Gagnon’s status to that of Regular Part-Time. 10. On August 18, 2008 the Grievor filed a grievance regarding the conversion and resulting changes to her pay and benefits. 11. On September 24, 2008 the Grievor filed a grievance regarding the conversion and resulting changes to her pay and benefits. 12. On October 1, 2008 the Grievor filed a grievance regarding her pay. 13. On November 17, 2008 the Grievor’s status was changed back to Full-Time pending an Independent Medical Examination. 14. The Grievor was on sick leave between January 12, 2009 and April 3, 2009 for an unrelated injury. During this period the Grievor utilized her STSP credits and as a result was receiving 75% of her Part-Time salary. 15. On May 7, 2009 the Grievor underwent an Independent Medical Examination. The report indicated that the Grievor’s restrictions of working 3 hours and 38 minutes per day were permanent. 16. On June 26, 2009 the Grievor was informed by way of a letter from her Manager, Sue Finch that the Employer could not (sic.) longer accommodate her in her current position of Worker Advisor. As a result she would be entered into the Corporate Health Reassignment Program. The Employer continues to search for an alternative position through the Corporate Health Reassignment process to the present day. 17. Further, in the same letter the Employer informed the Grievor that effective July 10, 2009 her status would be converted to Permanent Part-Time. 18. On July 17, 2009 the Grievor filed a grievance regarding her conversion to Part Time status, and resulting changes to her pay and benefits. - 4 - 19. The Grievor was granted full Loss of Earnings (LOE) benefits from October 16, 2007 until March 3, 2008 by WSIAT on September 17, 2009. 20. The Grievor was granted partial LOE benefits as of March 3, 2008 on the basis of her ability to work 3.5 hours per day. This LOE benefit continues to the present day. 21. In June of 2010, the Grievor was informed that she would now be assigned claim files and merit reviews to be handled during her 3 hours and 38 minutes of work. The Grievor was also informed that the WSIB had now approved accommodating her to conduct half- day hearings. 22. Currently, the Grievor’s benefits are as follows: i. Dental – The Employer is contributing 50% of the monthly premium for Dental Plan as per Article 68.4 of the Collective Agreement. The Grievor is currently paying the balance of the monthly premium ii. Supplementary Health and Hospital Insurance- The Employer is contributing 50% of the monthly premium for Supplementary Health and Hospital Insurance as per Article 67.1.1 of the Collective Agreement. The Grievor is currently paying the balance of the monthly premium iii. LTIP – The Employer is currently paying 100% of the monthly premium as per Article 70.1 of the Collective Agreement. iv. Basic Life – The Employer is currently paying 100% of the monthly premium as per Article 65.1 of the Collective Agreement. ” [2] The grievor was the sole witness to present evidence for the Union. She advised that her job as a Worker Advisor involves the representation of non-unionized injured workers before the Workplace Safety and Insurance Board (WSIB) and the Workplace Safety and Insurance Appeals Tribunal (WSIAT). She is also responsible for all of the - 5 - prepatory work associated therewith. The grievor is a lawyer and a member of the Law Society of Upper Canada. [3] Between October, 2007 and March, 2008, the grievor was on sick leave for her work related injury. In that period, she utilized the Short Term Sickness Plan (STSP) without topping up. As a consequence, she should have received seventy-five percent (75%) of her regular salary pursuant to article 44 of the collective agreement. The grievor, however, was paid one hundred percent (100%) of her salary up until December 17, 2007. While not entirely clear, it appears that her claim for WSIB benefits was denied about that time. After this denial, deductions started to be made from the grievor’s pay cheque. A deduction of $1,764.19 appeared on her pay stub dated December 27, 2007. The grievor assumed that this represented a recovery of the overpayment received between October and mid-December, 2007. She did not then view this deduction as an error. [4] It was the grievor’s evidence that mistakes subsequently started to appear on her pay stubs commencing in January, 2008. She testified that there were repeated errors made that were “out of sync” with the amount she felt should have been paid. By way of examples, she referenced the following: i. Her pay stub dated January 24, 2008 showed a deduction of $2,135.82 from her pay. As a consequence, her net pay was only $43.05. The grievor testified that she had no idea why - 6 - the aforementioned amount was deducted and, accordingly, elected to file a grievance in respect of same; ii. Her pay stub dated February 7, 2008 showed gross pay of $2,422.56. This was considerably less than the gross pay of $3,136.20 shown on her pay stub of January 10, 2008. The grievor testified that she did not understand why her gross pay had been reduced. She also cited a series of pay stubs which, from her perspective, incorrectly calculated her gross pay as follows: March 6 ($2,099.57), March 20 ($2,422.62), April 3 ($2,684.42), May 1 ($2,261.87), June 12 ($888.19), July 24 ($2,584.16) and August 21, 2008 ($1,540.31). The grievor stated these were only some of the errors made in 2008; and iii. The grievor advised that this problem continued into 2009 and cited the following as the “worst examples” of errors made in respect of her gross pay: February 19 ($484.39), March 5 ($968.99), April 2 ($484.40), April 16 ($807.46) and September 3, 2009 ($904.81). [5] Following the initial Stage Two meeting regarding the pay issue, personnel in Ontario Shared Services developed a spread sheet which showed that the grievor owed $5,605.00 to the Employer. The grievor contested the correctness of the calculation and filed a further grievance. After a second Stage Two meeting, Ontario Shared Services conducted a salary review in respect of the grievor for both 2008 and 2009. This exercise concluded that the grievor owed the Employer the lesser amount of $1,714.22. It was the grievor’s evidence that she accepted this calculation once the process and rationale was explained to her. The parties then agreed, however, that the grievor would not repay anything until another issue regarding her benefits, which is described - 7 - in more detail below, was addressed. To be clear, the $1,714.22 has not been repaid to date. [6] During the course of her evidence, the grievor advised that she received a letter from her Manager, Ms. Sue Finch, dated December 20, 2010. This letter, which was not filed as an exhibit, apparently provided the grievor with the option of paying one (1) of two (2) much larger amounts. As the grievor did not understand how the figures were arrived at, she filed a further grievance. The parties agree that this Vice-Chair is seized of this additional matter. [7] It was the substance of the grievor’s evidence that she brought the pay issue to Ms. Finch’s attention on several occasions and that her Manager advised her that she would speak to individuals in the Human Resources and Payroll Departments for assistance. The grievor, in cross-examination, agreed that Ms. Finch did pursue the matter, as promised. It is apparent, however, that the situation was confusing to all involved and that it took a substantial period of time to address the discrepancies complained of. [8] As indicated in the Agreed Statement of Facts, the grievor returned to work on modified duties in March, 2008. While she worked half days in the period March to July, 2008, the grievor continued to have full-time status. As a consequence, she - 8 - received health and welfare benefits at the full-time level. It was the grievor’s evidence that these benefits were “terminated” at some point in June, 2008. She explained that during that month she had visited her dentist and that the latter’s office was informed by the insurance carrier, when submitting the claim, that coverage had been cancelled. The grievor subsequently advised Ms. Finch of this development. She was later told by her Manager that the Human Resources Department had confirmed there was a problem, but that it had been remedied. The grievor testified, however, that she experienced a similar problem in July, 2008 when trying to obtain prescribed medications. At that juncture, her Pharmacy advised her that the coverage had been cancelled. The grievor recalled that this problem continued up until October, 2008 and that in the interim she was compelled to pay out of pocket for medications and dental expenses. It was ultimately determined in late October, 2008 that the grievor’s coverage had been terminated effective June 1, 2008. Steps were taken to reinstate such coverage and arrange for repayment of the amounts expended personally by the grievor. I was informed that the insurance company subsequently reimbursed the grievor for everything she had paid for in the period June to October, 2008. [9] The Agreed Statement of Facts also stipulate the following: the grievor’s status was converted from Full-Time to Regular Part-Time on July 16, 2008; a grievance was filed on August 18, 2008 regarding this conversion and the resulting changes to the grievor’s pay and benefits; the grievor’s status was changed back to Full-Time on - 9 - November 17, 2008 pending on Independent Medical Examination; and the grievor’s status was converted to Permanent Part-Time effective July 10, 2009. The grievor continues to have this latter status. [10] The grievor testified that post July, 2008, deductions were made from her pay for benefits and, more specifically, for the Dental Plan and Supplementary Health and Hospital Insurance. The grievor prepared a chart, which was filed as an exhibit, showing the deductions from her pay for health and welfare benefits over the period August, 2008 to August, 2011. She totalled the deductions made during this period at $5,065.91. [11] The grievor further testified that following the conversion to Permanent Part- Time status in July, 2009, the amount deducted from her pay for pension purposes was reduced by approximately one half in comparison to the usual deduction prior to that change. [12] As indicated, by WSIAT Decision of September 17, 2009, the grievor was granted full Loss of Earning (LOE) benefits from October 16, 2007 to March 3, 2008. Additionally, she was granted partial LOE benefits as of March 3, 2008 and continuing based on her ability to work three and one-half (3 ½) hours per day. With respect to the initial period, in respect of which full LOE benefits were awarded, the grievor was - 10 - entitled to eighty-five percent (85%) of earnings. It was the grievor’s evidence, however, that following the Employer’s recovery of the initial twenty-five percent (25%) overpayment, she has not received the additional ten percent (10%) owing to her as a consequence of the above-mentioned WSIAT Decision. The grievor further maintained that she received no additional compensation for the half of the day she was unable to work in the period from July 16 to October 9, 2008. While it was not entirely clear, the grievor appeared to suggest that the Employer has received funds from the WSIB to compensate for the loss of earnings in both periods. [13] Lastly, the grievor advised that, with respect to the absence from October 16, 2007 to March 3, 2008, she did not receive full pay for the first sixty-five (65) working days, as required by article 41.2 of the collective agreement. She observed that the Employer initially paid her full salary, but then “took it back” through payroll deductions following the initial denial of her WSIB claim. [14] Ms. Sue Finch was the sole witness to present evidence for the Employer. Ms. Finch is the Regional Manager of the Office of the Worker Advisor. She is responsible for program delivery by Regional Offices in Windsor, London, Hamilton and St. Catharines and a Satellite Office in Sarnia, Ontario. A total of twenty-three (23) employees report to her. - 11 - [15] Ms. Finch testified that the grievor was initially converted to Regular Part-Time based on the medical report received from her personal physician, Dr. James H. Roth, dated July 10, 2008. The report reads, in part: “………………………………………………………………… I do feel that Heather Walsh-Gagnon has a permanent partial disability and will not be able to return to jobs requiring repetitive activities or heavy lifting, gripping or pinching with either hand. She is presently working half days which is three and three quarter’s hours a day. I feel that this is a permanent restriction as well. …………………………………………………………………” The conversion was effective July 16, 2008. Ms. Finch recalled that she exchanged emails with the grievor about the change prior to formally meeting with her on August 13, 2008. [16] As noted in the Agreed Statement of Facts, the grievor’s status was changed back to Full-Time on November 17, 2008 pending an Independent Medical Examination. The report following such examination, dated May 7, 2009, stated that the restriction the grievor only work three (3) hours and thirty-eight (38) minutes per day was permanent. This information prompted the Employer to convert her status to Permanent Part-Time effective July 10, 2009. [17] Ms. Finch agreed that the grievor approached her about the discrepancies in her pay. It was Ms. Finch’s evidence that she communicated with numerous individuals - 12 - responsible for pay, benefit and human resources issues, and with representatives with Ontario Shared Services, over a lengthy period of time in an effort to resolve the problem. She described the experience as “extremely frustrating”. In her words, it was “a long and complex, long standing problem and as time went on the problem just got bigger”. Ms. Finch added that she just could not seem “to get Ontario Shared Services’ attention on this”. She testified that it took a couple of years before Ontario Shared Services arrived at the figure of $1,714.22, as referenced in paragraph [5] of this Decision. Ms. Finch stated that the grievor was satisfied, at the time, with this calculation and that the parties agreed it was an accurate assessment of the amount the grievor owned to the Employer as of December, 2009. She acknowledged that the aforementioned figure did not take into account the other outstanding matter concerning the grievor’s benefits. It was agreed that the $1,714.22 would not be repaid until such time as the benefits issue was resolved. [18] Ms. Finch was unaware if the grievor received sixty-five (65) days of full pay, in respect of the October, 2007 to March, 2008 period, as required by article 41.2 of the collective agreement. Additionally, she was unable to dispute the grievor’s evidence that she did not receive the difference between sick leave entitlement (75%) and the WSIB award (85%) in respect of this same period. - 13 - [19] Ms. Finch testified that she, similarly, followed up on the concerns the grievor brought to her about her benefits. It was her belief that these concerns had been resolved. I took from Ms. Finch’s evidence that this belief was in respect of the lapse in coverage, as described earlier in paragraph [8] of this Decision. [20] The relevant provisions of the collective agreement read: ARTICLE 41 – WORKPLACE SAFETY AND INSURANCE 41.2 Where an employee is absent by reason of an injury or an occupational disease for which an award is made under the Workplace Safety and Insurance Act, his or her salary shall continue to be paid for a period not exceeding three (3) consecutive months or a total of sixty-five (65) working days where such absences are intermittent, following the date of the first absence because of the injury or occupational disease, and any absence in respect of the injury or occupational disease shall not be charged against his or her credits. 41.4 Where an employee receives an award under the Workplace Safety and Insurance Act, and the award applies for longer than the period set out in Article 41.2 (i.e. three (3) months), the Employer will continue subsidies for Basic Life, Long Term Income Protection, Supplementary Health and Hospital and the Dental Plans for the period during which the employee is receiving the award. The Employer shall continue to make the Employer’s pension contributions unless the employee gives the Employer a written notice that the employee does not intend to pay the employee’s pension contributions. I note that a virtually identical provision to article 41.4 is contained in article 69.4 in Part C relating to Regular Part-Time Employees. - 14 - [21] Counsel for the Union noted that the grievor was on sick leave between October 16, 2007 and March 3, 2008, and that she received a Workplace Safety and Insurance Act (WSIA) award in respect of same. She submitted that the Employer violated article 41.2 of the collective agreement in two (2) ways in this period. First, the grievor was ultimately only paid seventy-five percent (75%) of salary and not one hundred percent (100%) of salary for the first sixty-five (65) days of absence. Second, such absence was charged against her credits. Counsel asked that I confirm these contractual violations. She further noted that another matter which has to be factored into any remedy is what the grievor should have received after the initial three (3) month period, given that she continued to be subject to a WSIB award. Counsel advised that this issue has not yet been dealt with by the parties. [22] Counsel for the Union next addressed the grievor’s entitlement relating to health and welfare benefits once her status was converted to Regular Part-Time. She argued that the following two (2) periods are relevant to this assessment: July to November, 2008, this being the period of the initial conversion; and July, 2009 to the present, following the second conversion from full-time status. Counsel referenced the grievor’s calculation that $5,065.91 was deducted from her pay for health and welfare benefits up to August, 2011. She observed that the Employer did not dispute this amount through any contrary evidence. From her perspective, this amount was paid by the grievor, as the Employer did not properly apply article 41.4 of the collective agreement. - 15 - [23] Counsel for the Union submitted that, under article 41.4, the grievor was, and continues to be, entitled to the health and welfare benefits referenced therein at the full- time level, and at no cost to her, for as long as she is in receipt of a WSIB award. She argued that this contractual entitlement was not affected by the conversion of the grievor’s status to Regular Part-Time. More specifically, counsel argued that article 41.4 contemplates the situation of an employee who has a work-related injury, receives a WSIB award for a period of longer than three (3) months, and has reduced hours as a consequence of the injury. She submitted that, in this factual context, an employee, such as the grievor, is entitled to the full benefit of the article as if there had been no reduction in working hours. [24] Counsel relied on two (2) Decisions issued in Ontario Public Service Employees Union (McNally) and Ministry of Transportation, GSB File No. 2000-0306, 2000-1542 (Brown). The first Decision is dated October 16, 2003; the second is dated September 21, 2005. [25] The grievor in McNally initially injured her right knee at work in 1991 and was off work from time to time because of same. She suffered a recurrence in December, 1994 and missed additional time as a consequence. The grievor there, ultimately, returned to her job as a senior licensing clerk in September, 1995 with a modified schedule. Her hours increased gradually until she was working eighteen (18) hours per - 16 - week-three (3) days of six (6) hours each. Unfortunately, the grievor injured the same knee again in September, 1996 and was off the job until February, 1997. In September, 1997, she fell when her knee gave out and did not work until February, 1999. A medical certificate completed by the grievor’s doctor, dated January 5, 1999, characterized her medical restrictions as “permanent”. The grievor received WSIB benefits for each injury or recurrence and was found to be entitled to a Future Economic Loss (FEL) award. The grievor, in McNally, never was able to work more than eighteen (18) hours per week following her return in September, 1995. Nevertheless, she was treated as a full-time employee for the purpose of vacation, statutory holidays, pension and health and welfare benefits. In November, 1999, however, her status was converted to that of a regular part-time employee and she was advised that her entitlements would be reduced accordingly. [26] The Union in McNally contended that the Employer was contractually obliged to continue providing health and welfare benefits to the grievor because she had been granted a FEL award by the WSIB. It relied on article 41.4 in support of the contention. Ultimately, Vice-Chair R. Brown determined that the grievor was entitled to the protection afforded by article 41.4 in respect of the specific health and welfare benefits referenced therein. He noted that the article did not preclude the Employer from reducing certain other benefits, such as vacation and statutory holidays, and, therefore, proceeded to determine whether their reduction was prohibited by either the collective - 17 - agreement or the Human Rights Code, as discrimination based on disability. After considering the judgment of the Ontario Court of Appeal in Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital (1999), 169 D.L.R. (4th) 489, Vice- Chair Brown concluded that the facts before him did not constitute unlawful discrimination. In this regard, he stated. “………I note article 41.4 entitles the grievor to other benefits not available to employees working part-time for reasons other than disability. To this extent, as a disabled employee, she is treated more favourably than others…………………………..” (page 10) [27] The Union in McNally subsequently argued that the above ruling rested upon the tacit premise that the grievor continued to have full-time status. Vice-Chair Brown, in his second Decision, rejected that argument and, in the course of so doing, elaborated on the rationale for his conclusion in the earlier Decision as follows: “Rejecting the union’s contention that article 41.4 preserved full-time status and all of the benefits normally associated with this status, I concluded “article 41.4 does not preclude the employer from reducing some of the grievor’s benefits below the level previously enjoyed by her –ie. pension, sick leave, statutory holidays and vacation” (page 6). These benefits are not listed in article 41.4. It mentions some but not all of the benefits typically provided to full-time employees- something the Union’s argument entirely ignored. In my view, the only reasonable explanation for this differential treatment is that the parties to the collective agreement intended someone like the grievor, whose hours are reduced because of a workplace injury, to continue receiving the benefits specified in article 41.4 as if there had been no reduction in hours, but not to enjoy the same protection for other benefits not listed. …………………………………………………” (page 3) - 18 - [28] Counsel for the Union in the instant dispute submitted that the situation here mirrors that which existed in McNally. On the reasoning of that Decision, she argued that conversion to part-time status does not preclude an employee’s entitlement to the protection of article 41.4 of the collective agreement. Counsel further argued that article 69.4 is inapplicable to this case, as the grievor had full-time status, and worked full-time hours, prior to the injury. She suggested that the appropriate “reference point” to determine applicability is the date of injury. In this regard, counsel stressed that the grievor was not a part-time employee as of the onset of her injury. Counsel also relied on the award in Re Victorian Order of Nurses (Algoma Branch) and Ontario Nurses’ Association (1996), 56 L.A.C. (4th) 235 (Low) in support of her argument on this aspect of the case. In summary, she submitted that to treat the grievor as part-time for purposes of the health and welfare benefits listed in article 41.4 would defeat the intent of that contractual provision and would disregard the conclusion reached in McNally. [29] Counsel observed that the collective agreement effective January 1, 2009 added the following language to article 41.4: “………The Employer shall continue to make the Employer’s pension contributions unless the employee gives the Employer a written notice that the employee does not intend to pay the employee’s pension contributions.” She suggested that the addition of this new language was in response to the second McNally Decision and reflected an intent of the parties that pension be treated in a - 19 - fashion identical to the other listed benefits. Counsel submitted that after January 1, 2009, the grievor was entitled to have the Employer make pension contributions at the full-time level, as if there had been no reduction in her working hours. [30] In response, counsel for the Employer submitted that the change to the grievor’s status was proper in view of the medical evidence confirming that the restriction on her hours of work was permanent. In this regard, counsel referenced both the report of the grievor’s physician, Dr. James H. Roth, dated July 10, 2008 and the report from the Independent Medical Examination dated May 7, 2009. She argued that following the conversion, the grievor’s entitlement to benefits was governed by the Regular Part- Time provisions of the collective agreement and, more specifically, by articles 67.1.1, relating to Supplementary Health and Hospital Insurance, and 68.4 relating to the Dental Plan. Under both of the aforementioned provisions, the percentage of the monthly premium paid by the Employer is tied to “the percentage that the employee’s weekly hours of work bear to full-time employment”. The balance of the premium is paid by the employee through payroll deduction. [31] Counsel argued that benefit contributions are made by the Employer for the purpose of providing additional compensation in exchange for work. It was her submission that the Employer is entitled to compensate a disabled employee, who can only work part-time hours, on the same basis as other part-time employees. She noted - 20 - that, in contrast, the Union claimed that the grievor is entitled to receive benefits as if she was still working full-time. Counsel argued that the Union’s position is not supported by the applicable jurisprudence. On her reading, the authorities establish that it is not discriminatory to compensate a disabled employee, who can only work part- time, on the same basis as other part-time employees when there is no reasonable accommodation which would enable the employee to work full-time. The Employer relies on the following authorities in support of this submission: Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital, cited above; Ontario Public Service Employees Union v. Liquor Control Board of Ontario (Eveleigh Grievance), GSB No. 2008-2134 (Gray); Cambridge Memorial Hospital and Ontario Nurses’ Association (Butts Grievance) (1999), 79 L.A.C. (4th) 392 (Barrett); Ontario Liquor Boards Employees Union and the Liquor Control Board of Ontario (Pound), GSB No. 3278/92 (Briggs); Ontario Public Service Employees Union v. Ministry of Community Safety and Correctional Services (Lucan Grievance), GSB No. 2003-0167 et al. (Abramsky). [32] In Orillia Soldiers Memorial Hospital, the Ontario Court of Appeal found that employer contributions to employee benefit plans are a form of compensation. It further determined that 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. Counsel argued that, in the circumstances of the instant case, the grievor is not entitled to the benefits claimed at the full-time level, given that she only works part- - 21 - time hours. It was her assessment that the Employer is entitled to receive full-time work in exchange for this form of full-time compensation. [33] In Eveleigh, the grievor was converted from full-time to part-time status on the basis of medical information confirming that he was permanently unable to work full- time hours. This change affected the magnitude of the grievor’s attendance and vacation credits, as well as his ability to access attendance credits as a source for income replacement. It also negatively impacted his pension. The Union argued that this change in status was a reaction to the grievor’s disability and, therefore, constituted discrimination prohibited by both the collective agreement and the Human Rights Code. This argument was rejected by Vice-Chair O.V. Gray. The pertinent part of the Decision reads: “The approach of the Supreme Court in Meiorin, as explained in Hydro- Quebec, is not inconsistent with the conclusion of the Ontario Court of Appeal in Orillia Soldiers Memorial Hospital that the obligation to accommodate disability does not extend to replacing wages or benefits that the employee would have received for doing work that the employee could have done “but for” her disability, when there is no accommodation by which the employer could enable the employee to do that work. Several of the decisions and awards relied on by the employer address the question whether someone who was once a full-time employee but as a result of a disability can only work part-time hours remains entitled to benefits calculated as though the employee was still a full-time employee. Generally speaking, those decisions take the view that benefits of the sort in issue here are part of the compensation provided for working full-time hours. They adopt, explicitly or implicitly, the approach of the Ontario Court of Appeal in Orillia Soldiers Memorial Hospital to compensation of employees totally unable to work and apply it to compensation of - 22 - employees able to work part-time but not full-time hours, and determine that it does not amount to discrimination on the basis of disability to compensate a disabled employee working part-time hours in the same way as other part-time employees would be compensated.” Ultimately, it was held that the Employer in Eveleigh was entitled to end the grievor’s full-time status and to apply the Permanent Part-Time provisions of the collective agreement to his part-time employment. [34] The issue in Cambridge Memorial Hospital was whether a full-time nurse, whose permanent restrictions due to handicap required her to work less than full-time hours, should have received health and welfare benefit coverage as if she were a full-time nurse, or a percentage in lieu of benefits to which a part-time nurse was entitled under the collective agreement. A majority of the Board of Arbitration applied the approach taken in Orillia Soldiers Memorial Hospital and found that benefit plan participation is a compensation issue and that it did not constitute discrimination to provide the grievor with only the collective agreement benefits she was entitled to by reason of the number of hours worked. [35] In Pound, the grievor was absent from work due to a compensable injury. The grievor claimed that she was the victim of adverse impact discrimination because the Employer failed to allow her to continue to accrue vacation and attendance credits - 23 - during the period of her absence. This claim was rejected by Vice-Chair F. Briggs. The material excerpts from the Decision read: “………………………………………………………………… The matter at issue is one of compensation. The Employer’s long standing and continuing practice of disallowing the accrual of vacation and attendance benefits while employees are absent without pay is not a matter of discrimination which impacts upon an employee’s access to employment. It is a matter of an employee’s level of compensation………………………………………………” (page 9) -and- “Employees who are absent from work and in receipt of Worker’s Compensation Benefits are paid an amount of money that is less than what employees attending at work would otherwise earn. As in the Stelco case, there was no suggestion from the Union that the grievor was monetarily compensated in an amount that is contrary to the Code. During the period when she was in receipt of Worker’s Compensation Benefits, Ms. Pound was compensated in a manner that was consistent with the Code. The fact that she did not continue to accrue certain benefits which were earned by her co-workers who attended at work is not discriminatory. The earning of those benefits is dependent upon attendance at work. That qualification does not, in my view, offend the Code.” (pages 10-11) [36] The issue in Lucan was whether the Employer discriminated against employees absent from work due to work-related injuries by not counting the period of absence in the calculation of continuous service, the accrual of attendance credits, or for merit pay purposes. Vice-Chair R.H. Abramsky found that attendance credits and merit increases were compensation benefits tied to the performance of work. She, therefore, determined that it was not discriminatory to require an employee to actually work in - 24 - exchange for those benefits. Vice-Chair Abramsky reached an opposite conclusion in respect of the calculation of continuous service, as she concluded that the treatment adversely impacted an employee’s ability to participate and thrive in the world of work in the Ontario Public Service. [37] Lastly, counsel for the Employer referenced a Compensation Directive from Management Board of Cabinet issued in August, 2007 and last revised in June, 2011. The Directive reads, in part: “GROUP INSURANCE PLANS 49(1) The Crown may enter into agreements with insurance underwriters for the purpose of providing employees the following group insurance coverages: …………………………….. 5. A Supplementary Health and Hospital Insurance Plan. 6. A Dental Insurance Plan. …………………………………………………… (2) The group insurance coverage referred to in subsection (1) shall not be provided for an employee during a leave of absence without pay except to the extent that the employee arranges through the payroll or personnel branch of his or her ministry to pay the amount of the full premium for any of the coverages that the employee chooses to have continued during the leave and pays the amount at least one week before the first of each month of the leave of absence. …………………………………………………………” - 25 - [38] Counsel for the Employer argued that it is unnecessary for this Vice-Chair to issue a declaration with respect to the pay discrepancy issue. She noted that the Agreed Statement of Facts provides that the grievor was paid at seventy-five percent (75%) of salary between October, 2007 and March, 2008. She further noted that it is also agreed the grievor was granted full LOE benefits for that period by WSIAT. Counsel advised that the Employer, at no point, has taken the position the grievor is not entitled to full loss of earnings at eighty-five percent (85%) as provided for by the WSIA. She suggested that a recalculation could be done following the disposition of the benefits issue. [39] Counsel for the Employer stated that if the grievor indicated an intention to pay pension contributions at the full-time level, then the Employer would contribute in similar fashion. From her perspective, the parties are in agreement on this aspect of the dispute. In addressing this issue, counsel referenced a ‘Fact Sheet’ prepared for members of the OPSEU Pension Trust. [40] The Union’s reply argument may be summarized as follows: i. The authorities relied on by the Employer are all distinguishable, as they do not address an employee’s entitlement under article 41.4 of the instant collective agreement. Counsel reiterated that, as recognized by McNally, this article is intended to provide a greater benefit to disabled employees who, as a result of their workplace injury, have to work part-time hours. She - 26 - submitted that there is nothing in the case law which precludes this type of negotiated provision. Counsel agreed that, following the conversion, the grievor is subject to the Regular Part-Time provisions of the collective agreement with the exception of the benefits specifically mentioned in article 41.4; ii. On counsel’s reading, the Agreed Statement of Facts sets out different time periods and the level of pay received by the grievor in respect of same. It was her submission that the document does not reflect an agreement that contractual violations have occurred. She, in substance, asked that I “spell out the nature of the violations”; and iii. Counsel recognized that the parties are in agreement on the pension issue moving forward. She stressed, however, that the Employer has not made full-time contributions over the past two (2) years. Counsel asked for the issuance of an order that the obligation to make contributions at that level arises from article 41.4. [41] The parties, in effect, asked that I make the necessary rulings to permit them to engage in meaningful discussions concerning the remedy appropriate in the circumstances of this case. I trust that the following comments will assist them in this process. In any event, I will remain seized with respect to all of the issues arising from the grievances. [42] From the evidence presented, it is practically impossible for me to completely understand, or explain, the amount and the timing of the numerous deductions made from the grievor’s pay in 2008 and 2009. It appears that part, if not all, of the - 27 - deductions reflect an attempt on the part of the Employer to recoup an overpayment, it believed it made, in the period from October 16 to December 17, 2007. The difficulty in trying to piece this all together is evidenced by the lengthy period of time it took Ontario Shared Services to arrive at a calculation that was both understandable and acceptable to the grievor. In the circumstances, it is easy to grasp why the grievor was confused about the quantum and pattern of the deductions from her pay stubs. Ultimately, on the evidence, I am satisfied that the grievor owed the amount of $1,714.22 to the Employer as of December, 2009. Both the grievor and the Employer agreed to this amount following the completion of the salary review for 2008 and 2009. Accordingly, the parties are to use this figure as a starting point for the further calculations required as a consequence of this Decision. [43] Much of the difficulty arising in this case stems from the fact that there was no WSIA award made as of the time the grievor went off on sick leave in October, 2007. Notwithstanding that fact, the Employer continued to pay her full salary for approximately two (2) months after the start of her leave. As mentioned above, the Employer then acted to recover what it viewed as an overpayment, once it learned that the grievor’s WSIB claim was denied. That denial, however, was subsequently reversed by the WSIAT Decision of September 17, 2009. The result of the aforementioned Decision was that the grievor was entitled to have her full salary continued under article 41.2 for a period not exceeding three (3) consecutive months or - 28 - a total of sixty-five (65) working days where the absences were intermittent. The parties will, therefore, have to address this entitlement, as the grievor ultimately only received seventy-five percent (75%) of her regular salary in the period October, 2007 to March, 2008. [44] Two (2) other matters arising from the WSIAT Decision will have to be assessed by the parties. First, the grievor is entitled to the ten percent (10%) differential in pay between what she received under the STSP (75%) and what she would have received under the WSIA (85%) in respect of the period October, 2007 to March, 2008. Second, the parties will have to consider the impact of the WSIAT Decision on what the grievor should have received in pay in the period following March 3, 2008, in respect of which she was awarded partial LOE benefits. As noted in the Agreed Statement of Facts, the grievor returned to work on modified duties on that date and has only been able to work half days since. I recognize that this latter matter has not been addressed by the parties in their discussions to date. I was given no reason to question the grievor’s assertion that she has not received any extra payment in respect of either of these periods. [45] Two (2) periods of time are relevant to the resolution of the benefits issue. The first is the period from July 16 to November 17, 2008, which encompassed the initial conversion. The second is the period from July 10, 2009 to the present, representing the subsequent conversion from Full-Time to Permanent Part-Time status. During both of - 29 - these periods, deductions were made from the grievor’s pay to cover part of the overall premium for Supplementary Health and Hospital Insurance and the Dental Plan. In my judgment, the grievor should be compensated for these deductions, as she is entitled to the protection afforded by article 41.4 of the collective agreement. I accept that, in the final analysis, the grievor’s situation mirrors that present in McNally, and that the reasoning of that Decision is applicable to the instant dispute. The conversion of the grievor’s status to Part-Time does not, pursuant to McNally, affect the rights provided for by article 41.4 or, more specifically, the Employer’s obligation thereunder to continue subsidies at the full-time level for the two (2) benefits in issue. I reject the submission that article 69.4 was triggered by the conversion. I think it material that the grievor had full-time status, and worked full-time hours, prior to the injury which led to the absence commencing October, 2007. [46] I agree with the reasoning and result in all of the authorities relied on by the Employer. I have been persuaded, however, that they are all distinguishable, as none of them involved an interpretation and application of article 41.4 relative to the specific benefits referenced therein. I also note the Union did not submit in closing argument that the Employer’s actions represented discrimination on the ground of handicap or disability. I think it would represent an error to distinguish McNally on the sole basis this grievor was not subject of a WSIB award when she was converted to the lesser status. As mentioned, the initial denial of benefits was reversed on appeal. Ultimately, - 30 - I conclude that the resolution of these grievances has to be predicated on the fact the grievor was found to be entitled to WSIA benefits effective October 16, 2007. [47] I was given no reason to doubt the grievor’s calculation as to the total amount deducted from her pay stubs for Supplementary Health and Hospital Insurance and the Dental Plan over the period August, 2008 to August, 2011, this being $5,065.91. I leave it to the parties, however, to confirm the accuracy of that figure. [48] It is unfortunate that the grievor’s benefit coverage was cut off in June, 2008 and that, as a result, she was compelled to incur personal expense for dental work and prescribed medications. This problem, however, was subsequently remedied and the grievor has been reimbursed for all of the monies expended in the period June to October, 2008. Consequently, this is not a relevant factor to be considered in the discussions around remedy on the benefits issue. [49] The parties agree that, moving forward, the Employer will make pension contributions on the grievor’s behalf at the full-time level. This assumes that the grievor is also prepared to contribute at the same level. While I cannot say this with any certainty, it seems likely that less than full-time contributions were made by the Employer in respect of periods following the change to article 41.4, that is, post January 1, 2009. The parties will, of necessity, have to go back to their records to determine - 31 - when such lesser contributions were made and then retroactively augment same to the higher level. This, again, is premised on the grievor’s willingness to top up what she has already paid to the level of contribution required of a full-time employee. Given the Employer’s acknowledgement, it is unnecessary, strictly speaking, to declare that this result flows from the change to article 41.4 in the current collective agreement. I am, however, disposed to accept the Union’s submission that such change reflects an intention to treat the listed benefits and pension in an identical fashion. [50] It is apparent from the facts that the grievor opted to use the STSP, and take a leave of absence with pay, in respect of the period October, 2007 to March, 2008. It is readily understandable why the grievor elected to do so, given that a WSIA award had not then been made in her favour. The Union argued that this was contrary to article 41.2 which provides that “any absence in respect of the injury or occupational disease shall not be charged against his or her credits”. Given the limited submissions on the point, it remains unclear whether the use of a leave of absence with pay under article 44.1(b) equates with the use of credits for purposes of article 41.2. A question that arises is whether the use of the word “credits” in the latter provision was only intended to capture attendance, vacation and overtime credits. In any event, I leave it to the parties to initially determine whether some adjustment needs to be made. The issue will be revisited, if necessary. - 32 - [51] The parties are directed to resolve the outstanding issues in a manner consistent with this Decision. As stated above, I continue to remain seized with respect to these issues. Dated at Toronto this 5th day of January 2012. M.V.Watters, Vice-Chair