HomeMy WebLinkAboutDunn/Duquette 11-11-09In the Matter of an Arbitration
Pursuant to the Labour Relations Act, S. O. 1996
Between:
MENTAL HEALTH CENTRE PENETANGUISHENE
(formerly The Crown in Right of Ontario - Management Board of Cabinet)
(the Employer)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
On behalf of its Local 329
(the Union)
Re: Vacation Credits - Grievances of Jeff Dunn and Martin Duquette
A W A R D
PAULA KNOPF - ARBITRATOR
APPEARANCES:
For the Employer: Jason Green, Counsel
Jeffrey Miller
For the Union: Eric del Junco, Counsel
Al Donaldson
The hearing of this matter was held in Barrie, Ontario on October 31, 2011.
The grievances allege that two long service employees were denied their entitlement to
five days of vacation.
There is no dispute about the relevant facts. However, the parties presented the case
on the basis of two “Agreed” Statements of Fact that were not precisely the same. The
undisputed facts are printed below in regular type and the italics represent additional
facts that the Union wished to include, but were either not agreed to or considered
irrelevant by the Employer. Those additional points have been included for the sake of
completeness and because they are important to the parties’ arguments and responses:
1. On December 15, 2008, the Mental Health Centre Penetanguishene (the
“Hospital”) was divested from the Crown in right of Ontario to become a public
hospital corporation pursuant to the Public Hospitals Act. Prior to this date, the
bargaining unit members working in the Hospital were Crown employees.
2. At all relevant times to these grievances up to January 8, 2010, the parties were
bound to the terms and conditions of the 2005-2008 collective agreement
between the Crown and OPSEU, which continued in full force and effect pending
negotiation of a successor collective agreement between the Hospital and the
OPSEU Local 329 (the “old Collective Agreement”).
3. The jurisdiction of the arbitrator in these grievances arises from the Collective
Agreement.
4. The grievor Jeffrey Dunn is a member of the OPSEU bargaining unit and has a
seniority date of April 4, 1985. For the purposes of these grievances, Mr. Dunn
had twenty-five (25) years of service with the Hospital in 2010.
5. The grievor Martin Duquette is a member of the OPSEU bargaining unit and has
a seniority date of November 14, 1985. For the purposes of these grievances, he
had twenty-five (25) years of service with the Hospital in 2010.
6. Prior to 2010, employees of the Hospital covered by the terms and conditions of
this collective agreement who achieved twenty-five years of service were
provided an additional five (5) days of vacation effective January 1 of the
calendar year in which the milestone was achieved. The additional five days of
vacation were provided pursuant to articles 46.4 and 46.8 of the Collective
Agreement.
7. Specific examples of employees provided with these additional five days of
vacation allotment in 2009 immediately include Pierre Gignac, Bruce Dunn and
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Al Donaldson with seniority dates of August 4, October 19 and April 24, 1984,
respectively.
8. Any delay after January 1, 2009 in the entering of these credits into the system
was simply a function of delay in the entering of the credits into the employer’s
records by the employer’s HR staff.
9. On January 8, 2010, the successor collective agreement between the Hospital
and the Local Union was ratified and took effect (the “Successor Agreement”).
10. From January 8, 2010 forward, the terms and conditions of the Successor
Agreement applied to the employees of the OPSEU Local 329, including the
grievors.
11. In the calendar year 2010, the grievors were entitled to and received a total of six
(6) weeks’ vacation entitlement pursuant to the terms of the Successor
Agreement.
12. The employer refused to credit these employees with the 25-year vacation
bonus following January 1, 2010 and they each filed grievances in response to
this refusal.
The parties agree that my jurisdiction arises under the Collective Agreement in force
from January 1, 2005 - January 8, 2010. The relevant provisions of the Collective
Agreement are:
ARTICLE 46 - VACATIONS AND VACATION CREDITS
46.1 Effective January 1, 1992, an employee shall earn vacation credits
at the following rates:
(a) One and one-quarter (1-1/4) days per month during the first
eight (8) years of continuous service;
(b) One and two-thirds (1-2/3) days per month after eight (8)
years of continuous service;
(c) Two and one-twelfth (2-1/12) days per month after fifteen
(15) years of continuous service;
(d) Two and one-half (2-1/2) days per month after twenty-six
(26) years of continuous service.
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46.2 An employee is entitled to vacation credits under Article 46.1 in
respect of a month or part thereof in which he or she is at work or
on leave with pay.
46.3 An employee is not entitled to vacation credits under Article 46.1
in respect of a whole month in which he or she is absent from duty
for any reason other than vacation leave of absence or leave of
absence with pay.
46.4 An employee shall be credited with his or her vacation for a
calendar year at the commencement of each calendar year.
. . .
46.7 An employee with over six (6) months of continuous service may,
with the approval of the Deputy Minister, take vacation to the
extent of his or her vacation entitlement and his or her vacation
credits shall be reduced by any such vacation taken. For this
purpose, an employee may include any continuous service as an
employee in the Public Service of Ontario immediately prior to his
or her appointment to the civil service.
46.8 Where an employee has completed twenty-five (25) years of
continuous service, there shall be added, on that occasion only,
five (5) days of vacation to his or her accumulated vacation
entitlement.
. . .
46.10 Where an employee leaves the service prior to the completion of
six months' service as computed in accordance with Article 46.7,
he or she is entitled to vacation pay at the rate of four percent
(4%) of the salary paid during the period of his or her employment.
46.11 An employee who has completed six (6) or more months of
continuous service shall be paid for any earned and unused
vacation standing to his or her credit at the date he or she ceases
to be an employee, or at the date he or she qualifies for payments
under the Long Term Income Protection plan as defined under
Article 42, and any salary paid for unearned vacation used up to
that time shall be recovered by the Employer from any monies
owing to that employee.
. . .
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The Submissions of the Parties
The Submissions of the Union
The Union argued that the Grievors’ right to the additional five days of vacation
crystallized and/or accrued on January 1, 2010 under the old Collective Agreement. It
was stressed that nothing in the successor Collective Agreement that came into effect
upon ratification on January 8, 2011 took away any rights that had accrued under the
old Collective Agreement. The Union also argued that the Employer’s agreement to the
wording of Paragraph 6 above “captures” what the Union is claiming in these
grievances, that being that the Grievors be provided an additional five days of vacation
effective January 1, 2010 because 2010 was the year that they would achieve 25 years
of service, pursuant to Articles 46.4 and 46.8. The Union stressed that this is a “one off”
situation because it was acknowledged that the successor Collective Agreement altered
the vacation entitlements. However, it was submitted that these Grievors should not be
deprived of the vacation entitlements that existed before the successor contract came
into force.
The Union also suggested that the extrinsic evidence italicized above is relevant
because it provides context and concrete examples of the agreed upon concepts.
While asserting that the Collective Agreement is clear and unambiguous, it was also
argued that the evidence reveals and resolves a latent ambiguity in favour of the
Union’s position. In support of these propositions, the Union relies upon Noranda Metal
Industries v. International Brotherhood of Electrical Workers, Local 2345, [1983] 44 O.R.
529 (O.C.A.); Atlas Copco Exploration Products, a Division of Atlas Copco Canada Ltd.
v. International Association of Machinist and Aerospace Workers, Local 2312 (Ortepi
Grievance), [2011] O.L.A.A. No. 270 (R. Levinson).
The Submissions of the Employer
The Employer began by pointing out that the successor Collective Agreement improved
the vacation entitlements for the bargaining unit. Under the Collective Agreement that
governs this case, the year someone attained 25 years of service, s/he was entitled to
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five weeks plus five days of vacation, totaling six weeks. Under the successor
Collective Agreement, bargaining unit members are entitled to six weeks of vacation
after 24 years of service. Therefore, the Employer pointed out that the Grievors actually
became entitled to a total of six weeks' vacation in 2010 under the successor Collective
Agreement ratified. Therefore, it was suggested that they are trying to unfairly capitalize
on the anomaly of the ratification date to claim a further five days of vacation.
More importantly, the Employer argued that this case turns on the language of Article 46
as a whole, not just subsections 46.4 and 46.8 in isolation. It was stressed that the
Article first defines the basis upon which vacation credits are “earned” in a calendar
year and then includes Article 46.4 as an administrative provision that sets out when
and/or how the vacation credits will be designated. It was submitted that Article 46.4
does not take away from the fact that employees’ rights to any vacation time do not vest
until they actually put in the time and/or reach the 25th anniversary mark in order to
actually “earn” the paid time off. The Employer argued that Articles 46.10 and 46.11
make this clear because if an employee takes vacation and is terminated before any
vacation credits are actually “earned,” the Employer is entitled to “recover” any monies
paid for unearned vacation that was taken.
In the case of the Grievors, it was pointed out that their continuous service dates were
April 4 and November 4, 1985. Therefore, it was stressed that they did not achieve 25
years of continuous service until April 4 and November 4, 2010 and therefore could not
have “earned” the entitlement to the extra five days vacation until those dates. Since
those dates fell only after the successor Collective Agreement came into force, it was
argued that the Grievors have no right to make a claim under the old contract. While it
was acknowledged that other employees’ records might have shown that they were
“credited” with the additional five days of vacation in January of the year that they would
achieve 25 years of continuous service, it was stressed that their entitlement did not
accrue until they met the actual 25-year mark. Therefore, it was argued that the
Grievors have suffered no losses and that the grievances should be dismissed.
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The Union’s Reply Submissions
It was argued that the interplay of the old and the successor Collective Agreements
entitles the Grievors to both the extra five days' vacation credit effective January 1,
2010, as well as the entitlements that arose under the successor Collective Agreement
that came into effect on January 8, 2010, thereby giving them seven weeks' vacation
entitlement in their 25th year of continuous service. It was submitted that no
“unfairness” would be created because this would simply be a case of implementing the
contractual agreements of the parties.
The Decision
It is easy to see why these grievances were filed. The Grievors anticipated achieving
the anniversary of their 25th year of continuous service in the calendar year 2010. The
practice of the Employer, as codified in their Collective Agreement, was to credit
vacations for a calendar year at the commencement of each calendar year. This
practice included giving credit for the extra five days accruing to those who achieve 25
years of continuous service. Therefore, the Grievors would have legitimately have
expected to see credit for the additional five days in early January 2010. This had been
the case for their colleagues who had reached the 25-year mark before. However, a
successor Collective Agreement came into effect on January 8, 2010, before either of
the Grievors actually achieved 25 years of continuous service. That successor
Collective Agreement gave them six weeks of vacation, the exact same amount of time
they would have gotten under the old Collective Agreement, albeit earned on a different
basis. Therefore, the question becomes whether the Grievors are also entitled to the
additional five days that were provided for under the old Collective Agreement.
If Articles 46.4 and 46.8 are read on their own, the Union’s case could succeed.
However, it is a basic principle of collective agreement interpretation that contracts must
be read as a whole. Taking all the language of Article 46 into consideration, it becomes
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clear that while an employee may be “credited” with his or her vacation at the
commencement of a calendar year (46.4), the actual right to that vacation must be
“earned” through service. This is made most clear in Article 46.11 where it provides that
any salary for “unearned vacation used up” before s/he ceases to be an employee “shall
be recovered” by the Employer. This means that although the employee may be
“credited” for the vacation entitlement at the beginning of the year, s/he still has to
“earn” the right to that vacation allotment in accordance with Article 46.1. There is no
exception made for the extra five days allotted under Article 46.8. It provides that an
employee has an extra five days of vacation added to his/her accumulated vacation
entitlement when s/he has “completed” twenty-five (25) years of continuous service.
The language is clear; “ Where an employee has completed twenty-five (25) years of
continuous service, there shall be added, on that occasion only, five (5) days of vacation
. . .” This does not say, and cannot mean, that someone becomes entitled to the extra
five days at the commencement of the year that s/he may reach 25 years of continuous
service. The person must actually achieve 25 years of continuous service before the
extra five days becomes an entitlement. The fact that the Employer may credit those
days administratively at the commencement of the calendar year is no different from the
formula of days that are credited under Article 46.1. All this makes complete sense
because it allows employees to see their vacation entitlement and begin to plan and
even take their vacations before they are actually “earned” through service (46.7), but
also allows the Employer to recover the monies from any employees departing before
the end of the year if any vacation is taken before it was actually earned.
While other employees in previous years saw credits for those extra five days before
they actually reached their 25th anniversary date, their situation is very different from the
Grievors. The other 25-year employees achieved the 25-year anniversary and their
extra vacation entitlement in the year that they actually achieved 25 years of continuous
service. The Grievors did not achieve 25 years of continuous service while Article 46.8
was in place. They reached that achievement when the successor Collective
Agreement was in force and Article 46.8 had been removed. The irony is that the
successor Collective Agreement gave them the same total weeks of vacation in their
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25th year as all their colleagues under either Collective Agreement. Therefore, they truly
lost nothing when the new contract came into force.
For all these reasons, the grievances must be dismissed.
Dated at Toronto this 9th day of November, 2011.
"Paula Knopf"
__________________________
Paula Knopf - Arbitrator