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HomeMy WebLinkAboutHughes 24-05-29 In the Matter of an Arbitration Under the Labour Relations Act, 1995 BETWEEN: Ontario Public Service Employees Union Local 250 (THE “UNION” or “OPSEU”) AND Bruce County (THE “EMPLOYER”) (Re: Grievance of Allicia Hughes) Before: Adam Beatty, Sole Arbitrator Appearances For the Union Richard Dionne – Grievance Officer Allan Rogers – Chief Steward Allicia Rogers - Grievor For the Employer Victoria McCorkindale - Counsel Jenn Robinson – Director of Human Resources Steve Schaus – Director and Chief Paramedic Services This hearing was held via videoconference on May 3, 2024. AWARD Introduction 1. At issue is whether the Employer is required to pay short term disability (“STD”) benefits for an illness or injury where an employee has made a claim to the Workplace Safety and Insurance Board (“WSIB”) for that same illness or injury and is awaiting a decision on that claim. 2. The parties proceeded by way of an Agreed Statement of Facts (“ASF”). No other evidence was called. 3. The Grievor, Ms. Allicia Hughes, was hired by the Employer on or around March 3, 2014 as a part-time paramedic. The Grievor became a full- time paramedic on or around November 3, 2021. 4. On or around November 3, 2022 the Grievor went on a medical leave. When the Grievor went on leave she also made a claim to the WSIB. As part of making a claim to the WSIB, the Grievor had to submit medical forms, including a “Health Professional’s Report (Form 8)”. Through no fault of her own, there was a delay in getting the Form 8 completed. The Grievor made repeated efforts to have the Form 8 completed and sent in to her Employer so it could be provided to the WSIB. The Grievor continued to provide the Employer with updates on her situation. Unfortunately, the Form 8 was not sent to the Employer until December 21, 2022. 5. On December 11, 2022, the Grievor asked if she could be paid under the STD plan while she tried to have her WSIB claim processed. The Employer responded the next day advising the Grievor that she could not be paid under the STD plan while she had a WSIB claim pending. That is the decision that is the subject of the current grievance. 6. On April 21, 2023, approximately six months after first going on leave, the Grievor’s WSIB claim was approved. The Grievor was awarded full loss of earnings dating back to November 7, 2022. The Grievor was without pay throughout the entire period from when she went off on a leave until her WSIB claim was approved. Issue 7. As described above, the issue in this grievance is whether the decision to deny the Grievor STD payments while she waited for her WSIB claim to be determined violated Article 18.05 of the Collective Agreement. Given its centrality to the issue in dispute, I will reproduce Article 18.05 in its entirety. Article 18.05 states as follows: 18.05 Short Term Sick Leave Plan The Corporation will provide, to eligible permanent full-time employees who have completed three (3) months of their probationary period, a short term sick leave plan. a) Absence due to illness or injury, compensable by the Workplace Safety & Insurance Board, shall not be charged against sick leave entitlements. b) Each claim of sick leave shall be supported by a certificate from a qualified medical practitioner provided, however, that such certificate shall not be required if the period of such absence is not more than three (3) days. On the fourth (4th) day of illness in any calendar year, such certificate will automatically be required. Each illness thereafter, in such calendar year, may require a doctor's certificate on a case by case basis. c) Each eligible permanent full-time employee who has completed his/her probationary period will be entitled to one (1) week of sick leave at 100% of salary and fourteen (14) weeks of sick leave at 60% of salary during the first year of service. d) In each succeeding year of continuous service as a regular full- time employee, an additional week of sick leave at 100% of salary will be granted. The maximum allowable under the plan will be ten (10) weeks of sick leave at 100% of salary and five (5) weeks of sick leave at 60% of salary. A year shall commence on the first pay of each calendar year. e) Weekly earnings for employees paid by the hour will be calculated on the basis of the employee's normally scheduled workweek paid at their regular straight time rate. f) For the purpose of this provision, "sickness", shall mean a physical or mental disability, which renders the employee incapable of fulfilling the normal requirements of his/her job. g) Unused portions of sick leave will not accumulate from year to year under any circumstances, and there shall be no cash payout. h) Employees will arrange all medical appointments (with the exception of Specialists) to be taken on their scheduled days off. The onus is on the employee to provide proof of appointment acceptable to the Shift Supervisor ie. Doctor's note or Appointment card. Position of the Union 8. The Union argued that the Grievor was entitled to STD benefits under Article 18.05 while waiting for a determination of her WSIB claim. The Union relied on the decision of Arbitrator Surdykowski in Ontario Power Generation and Society of Energy Professionals, 2015 CanLII 56079 (ON LA) (“OPG”) for its summary of the principles of interpretation applicable to collective agreements. In OPG, Arbitrator Surdykowski held as follows: 7. The fundamental rules of collective agreement interpretation can therefore be summarized as follows: (i) the words used must be given their objective plain and ordinary contextual labour relations meaning; (ii) all words must be given meaning, and different words are presumed to have different meanings unless this would lead to a result that is illegal, absurd or inconsistent with the overall scheme and structure of the collective agreement. (iii) words or phrases cannot be inferred unless they is [sic] essential to the purposive operation of the collective agreement, or to make the collective agreement consistent with mandatory legislation which constitutes the statutory labour relations framework in the jurisdiction. 10. The Union acknowledged that Article 18.05 did not explicitly state that employees were entitled to STD benefits while waiting for a WSIB claim to be determined. However, according to the Union, the Grievor met the requirements for STD benefits under Article 18.05 and there was no language in that Article (or any other Article) that justified the decision to deny her STD benefits while she waited for the WSIB claim to be determined. 11. The Union argued that Article 18.05(a) established that where absences were eligible for compensation by the WSIB, those absences would not be charged against sick leave entitlements. The purpose of Article 18.05(a), according to the Union, is to ensure that sick leave entitlements would not be affected by absences approved for coverage by the WSIB. The purpose of Article 18.05(a) is not to deny employees STD benefits while awaiting a determination on their WSIB claims. At the time the Grievor was told that she was not entitled to STD benefits it remained unclear whether her absences would be eligible for compensation by the WSIB. As such, there were no grounds to “disqualify” the Grievor from receiving STD benefits. 12. The Union submitted that there was no dispute that the Grievor qualified as having a “sickness” as defined by Article 18.05(f). She had a diagnosis that rendered her incapable of fulfilling the normal requirements of her job. The Grievor had also satisfied the requirements of 18.05(b). The Union argued that she provided the required medical documentation to the Employer as requested. As such, pursuant to Articles 18.05 (c) and (d), and given her seniority, the Grievor was entitled to two weeks of STD benefits at 100% of her salary and 13 weeks at 60%. 13. The Union also argued that its interpretation was consistent with the past practice of the parties. The Union relied on the example of “Employee B”. According to the ASF, Employee B filed a claim for non-occupational sick leave and received STD benefits. Employee B then filed a claim for an occupational illness with the WISB. Upon filing the claim with the WSIB, the Employer changed their internal coding and no further STD benefits were paid. The WSIB eventually approved the claim and credited the Employer for the sick leave paid. The Union argued that the example of Employee B showed that the WSIB could have reimbursed the Employer for sick leave that had been paid out if the Grievor’s claim was approved. 14. The Union also argued that the Employer’s interpretation leads to unintended adverse effect discrimination depending on where and how an employee became sick. According to the Union, an employee with a documented injury outside the workplace would have their benefits flow under Article 18.05 but an employee whose suffered an injury at work cannot access Article 18.05 and has to wait for the WSIB process to play out. The Union argued that this could not have been the intention of the parties. 15. The Union relied on the decision of Arbitrator Knopf in Hamilton Civic Hospitals and Ontario Nurses’ Association Unreported; September 22, 1986 (Knopf). In that decision, commenting on the possibility of nurses not receiving benefits while awaiting approval of a Worker’s Compensation claim (a situation analogous to the situation of the Grievor) Arbitrator Knopf noted that “a loss of a source of income for any period of time would only add to the trials and hardships of a disabled nurse and his or her family”. Arbitrator Knopf also noted that if possible she would adopt an interpretation of the applicable documents that would “accord with the intent and desirability of preventing an interruption of earnings in the event of a disability”. 16. Next, the Union relied on the decision of Arbitrator Dissanayake in Brandt County Healthcare System and Ontario Nurses’ Association, [2007] O.L.A.A. No. 551. In that decision, Arbitrator Dissanayake interpreted specific language in the applicable collective agreement as providing income continuation while awaiting a determination from the WSIB. The Arbitrator held that the purpose of the relevant article of that collective agreement was “to bridge the period during which a nurse would otherwise be left without any income due to possible delay by the WSIB in issuing a final decision on an application”. The Union argued that Article 18.05 plays the same role in the Collective Agreement. 17. Finally, the Union relied on the decision of Arbitrator Weatherill in Bendix Automotive of Canada Ltd. v. U.A.W., Local 195, (1973) 3 L.A.C. (2d) 21. In that decision, Arbitrator Weatherill noted that where entitlements to Workers’ Compensation may be uncertain, payments of sickness and accident benefits have been made on the understanding that if the Workers’ Compensation benefits are ultimately paid, the sickness and accident benefits would have to be repaid. 18. By way of remedy, the Union seeks a declaration that the Employer has violated Article 18.05 of the Collective Agreement. The Union is also seeking reimbursement of certain insufficient funds charges the Grievor received. According to the Union, the Grievor received these charges from her bank because the Employer’s failure to provide her with STD benefits left her without income for a significant period of time. Finally, the Union seeks $5000 for the Grievor for aggravated damages related to the pain and suffering for the mental distress when the Employer removed her from payroll pending a determination by the WSIB. Position of the Employer 19. The Employer agreed with the general approach to collective agreement interpretation summarized by Arbitrator Surdykowski in OPG. The Employer also relied on another decision of Arbitrator Surdykowski, Maple Leaf Consumer Foods (Hamilton Facility) and United Food and Commercial Workers Canada, Local 175, 2011 CanLII 6860 (ON LA). In that decision, Arbitrator Surdykowski emphasized that words must be give their plain and ordinary meaning, all words must be given meaning and different words should be given different meanings. The Employer highlighted where Arbitrator Surdykowski wrote that the “rights and obligations of the parties and bargaining unit employees depend on the specific collective agreement language in issue.” 20. The Employer argued that there is no basis for the position of the Union. According to the Employer, Article 18.05 does not include a provision that permits an employee to collect STD benefits while waiting on WSIB to determine a claim. Nor does the Employer’s consistent past practice. 21. The Employer submits that there are two streams for sick leave benefits. Either an employee has a non-occupational illness or an occupational illness. If it is the former, the claim is processed through Article 18.05. If it is the latter, the claim is made to the WSIB. The Employer submits that the Union, and the Grievor, were aware of this distinction. 22. According to the Employer, the onus is on the Union to establish a breach of Article 18.05. The Employer argued that the Union has failed to satisfy its onus. The Employer relied on three arguments in support of its position. 23. First, the Employer argued that it is well-established principle of collective agreement interpretation that monetary benefits must be shown in clear, specific, and unequivocal terms. According to the Employer, there is no such language in the Collective Agreement. 24. The Employer relied on the following decisions in support of its position: Canadian General-Tower Limited and United Steelworkers of America, Local 862, 2011 CanLII 73194 (ON LA) (Surdykowski); , Unifor, Local 973 and Coca Cola Canada Bottling Ltd., (2022) 337 L.A.C. (4th) 392 (Beatty); and Golden Giant Mine v. U.S.W.A., Local 9364, [2004] O.L.A.A. No. 600 (Marcotte). In Canadian General-Tower the Arbitrator noted that “the clear language for economic benefit” principle has been consistently applied in Ontario. In Coca Cola Canada Bottling Ltd, I held that “clear and unambiguous language is needed where a union seeks to establish a financial entitlement in a collective agreement.” In Canadian General-Tower Arbitrator Surdykowski quoted from the decision in Cardinal Transportation and C.U.P.E. (1997), 62 L.A.C. (4th) 230 (Devine – B.C.), where Arbitrator Devine defined the clear language for economic benefit principle in the following manner: “Where a monetary benefit is asserted, it normally falls to the Union to show in clear, specific and unequivocal terms that the monetary benefit is part of the employee’s compensation package. Such an intent is not normally imposed by inference or implication …” Arbitrator Devine also held that where there is an ambiguity in the collective agreement there “must be clear and cogent evidence that the Employer intended to infer a monetary benefit.” 25. In Canadian General-Tower Arbitrator Surdykowski also held that the clear language for economic benefit principle is a necessary corollary to the principle that “bargaining unit employees are entitled to only those (non- statutory) benefits that their union is able to extract from the employer in bargaining”. In that decision, Arbitrator Surdykowski noted that parties are only entitled to what they have bargained for in the collective agreement. Albeit in a very different context, Arbitrator Chertkow reached the same conclusion in Wire Rope Industries and U.S.W.A., Local 3910, (1982) 4 L.A.C. (3d) 323. In Wire Rope, the Arbitrator held that “arbitrators ought not to impose a monetary obligation on an employer that he clearly did not bargain to pay” and that arbitrators should “not impose upon an employer any restrictions … unless it clearly and unequivocally bargained so to do.” 26. Applied to the facts of this case, the Employer argued that by seeking to be granted STD benefits while awaiting a determination on a WSIB claim, the Union was seeking an economic benefit that was not clearly spelled out in the Collective Agreement. The Employer noted that the language of Article 18.05 does not grant employees the right to claim STD benefits while waiting for the WSIB to decide their claim. Rather, the Collective Agreement is silent on that issue. Since there is no such language, bargaining unit employees are not entitled to the benefit and no such benefit should be inferred or imposed on the Employer. 27. The Employer also argued that if the Union’s interpretation was adopted, it could lead to a significant amount of uncertainty with respect to how employees were paid while waiting for their WSIB claim to be determined. In particular, it could lead to real financial uncertainty in the event the WSIB approved a claim after the Employer had already started provided STD benefits. 28. The Employer noted that if employees were entitled to STD benefits while awaiting a determination of their WSIB claim, the parties would need a mechanism for repayment in the event the WSIB claim was approved. There is no such mechanism in this Collective Agreement. The lack of language to this effect can be compared to the situation described by Arbitrator Dissayanake in Brandt County. In that collective agreement, the parties included language that stipulated that employees would only be entitled to receive short term disability while waiting for a WSIB claim to be determined if the employee provided, amongst other things, a “written undertaking satisfactory to the Hospital that any payments will be refunded to the Hospital” following a determination of the WSIB claim. The Employer argued that a minimum, the parties would have acknowledged in the Collective Agreement the possibility that STD benefits might have to be repaid in the event of a successful WSIB claim. According to the Employer, the lack of any such language supports the conclusion that the parties did not intend employees to be eligible for STD benefits while waiting for a WSIB claim to be determined. 29. Next, the Employer argued that if the Collective Agreement language is ambiguous, the past practice, going back to 2017 (three years before the Collective Agreement took effect) makes it clear that the Employer has not permitted employees to claim STD benefits while awaiting determination of a WSIB claim. The Employer noted that it has clearly taken the position that employees are not entitled to STD benefits while a WSIB claim is outstanding and that the Union has acquiesced to this position. 30. The Employer argued there is no evidence of any employee continuing to receive STD benefits after they have made a WSIB claim and are waiting for a decision on that claim. The Employer did note that there are three cases going back to 2017 where employees received STD benefits for occupational illnesses. However, in each of those cases (as set out in the ASF), the employee received STD benefits because the illness was initially considered non-occupational (and therefore eligible for STD benefits). Once the employee applied to the WSIB, the STD payments stopped pending a determination of the WSIB claim. Finally, there was one employee who was advanced one day wages under a Letter of Understanding with respect to “Critical Calls”. The parties agreed in the ASF that the employee in that case only received the advancement because of the LOU. The LOU has no application to the facts of this grievance. 31. The Employer also relied on Minutes of Settlement (the “MOS”) agreed to by the parties on July 8, 2020 in support of its position with respect to past practice. The MOS stated, amongst other things, that the Employer would not dissuade employees from applying for WSIB benefits and that if an employee in receipt of short term disability benefits chose to apply for WSIB, the Employer would “discuss with the Employee and the Union the implications of the application and the effect, if any, on the continuation of short term disability benefits.” The Employer argued the MOS spells out what the Employer is required to do when employees in receipt of STD benefits make a WSIB claim. The Employer emphasized that it is required to have a discussion with the employee and the Union. It is not required, according to the Employer, to continue the STD benefits. 32. Finally, the Employer argued that the decision not to allow an employee who has applied for WSIB benefits to receive STD benefits is a reasonable exercise of management rights. The Employer argued that it had reasonable operational reasons not to allow STD benefits during the WSIB waiting period. First, it would provide a greater benefit for part-time employees because only full-time employees are entitled to STD benefits. Second, it would also create an administrative burden for the employer because STD benefits would have to be reimbursed when a WSIB claim was approved. This would be the case for short-term and long-term WSIB claims. 33. In terms of remedy, the Employer noted that despite taking until April 2023 to issue its decision, the WSIB did award the Grievor full loss of earnings benefits backdated to November 7th, 2022. Accordingly, the Employer argued that the Grievor had been made whole and was not entitled to any further monetary remedy, regardless of how I determined the interpretive issue. The Employer argued that the Grievor’s claim for payment to compensate her for insufficient funds charges should be dismissed out of hand. According to the Employer, the insufficient funds charges have no link to the grievance before me and there is no evidence that the Grievor would not have received these charges if she had received her STD benefits. Analysis Applicable Principles of Interpretation 34. The principles of interpretation are not in dispute. As discussed, in the awards by Arbitrator Surdykowski referred to by the parties, words should be given their plain and ordinary meaning. They are to be read in the context of the specific article and the Collective Agreement as a whole. All words must be given meaning and words or phrases cannot be inferred unless they are essential to the operation of the collective agreement, or to make the collective agreement consistent with applicable legislation. 35. It is also now well-established that provisions of a collective agreement must be interpreted in light of the surrounding circumstances known to the parties at the time. The surrounding circumstances include the labour relations context known to the parties. I agree with the position of the Employer that rights and obligations in a collective agreement must be based on the language in the collective agreement and that benefits with a significant monetary value must be based on clear and unambiguous language and should not be inferred. 36. With these principles in mind, the question to be answered is the following: has the Union established that there is clear and unambiguous language, whose plain and obvious meaning when read in context of the collective agreement as a whole, and in light of the surrounding circumstances, including the labour relations context, that the Grievor was entitled to STD benefits while awaiting a determination of her WSIB claim. The answer to that question must be no. In short, the Union has not negotiated that benefit. 37. When read in context, Article 18.05 is silent on the question of whether STD benefits are payable when an employee has made a claim to the WSIB in respect of the same illness or injury. I agree with the Union, that the Grievor satisfied the definition of “sickness” under Article 18.05(f). However, I am unable to conclude that the Union has established that Article 18.05 entitles the Grievor to STD benefits while awaiting a determination on a WSIB claim. 38. As set out above, employees are only entitled to those rights and benefits they have bargained for and monetary benefits are expected to be expressed in clear unambiguous language. Arbitrators cannot add or imply rights and obligations into a collective agreement. Put differently, the parties are bound by what they have agreed to. No more and no less. 39. This conclusion is consistent with the jurisprudence cited by the Union. As discussed by Arbitrator Dissanayake in Brandt County, in Hamilton Civic Hospitals, Arbitrator Knopf held that in the “absence of a specific provision in the collective agreement there was no entitlement to any advance payment pending the determination of a workers compensation claim.” Arbitrator Knopf also noted that an illness or injury is either a “compensable accident” or it is not and that WSIB claims and STD benefits are two distinct paths for benefits stemming from an absence or illness. Article 18.05 (a) speaks to this difference and establishes that illnesses or injuries compensable by the WSIB shall not be charged against sick leave entitlements. In other words, where an absence qualifies for WSIB benefits, that absence will not be deducted from the employee’s STD benefits. This makes sense given that the employee that qualifies for WSIB benefits is not in need of STD benefits. Both parties agreed that employees are not entitled to “double dip” and claim both STD and WSIB benefits. A choice between the two options must be made. 40. Further support for this conclusion can be found by interpreting Article 18.05 in the context of the Collective Agreement as a whole. Here, it is important to note that the parties did not include any language addressing the possibility that the Employer might need to be reimbursed in the event an employee claiming STD benefits was subsequently approved for WSIB benefits. Put differently, if the Union’s interpretation is correct, and the Grievor is entitled to STD benefits while awaiting a determination on her WSIB claim, it would be reasonable to expect the parties to have turned their mind to the possibility that such STD benefits may need to be reimbursed to the Employer. As such, the lack of any such language, even acknowledging the possibility that STD benefits may need to be reimbursed to the Employer stands out. 41. The lack of any such language is particularly notable when compared to the decision of Arbitrator Dissanayake in Brandt County. As discussed by Arbitrator Dissanayake, the parties in that matter added language to address the gap identified by Arbitrator Knopf in Hamilton Civic Hospitals. In Hamilton Civic Hospitals, Arbitrator Knopf noted that there was no language that established that employees were entitled to STD benefits while awaiting a Workers Compensation claim. According to Arbitrator Dissanayake in Brandt County, the parties added language in their collective agreement to fill that gap. While the lack of comparable language in this Collective Agreement is not, in and of itself, determinative, it is a factor that must be considered. 42. I also note that this conclusion is consistent with the surrounding circumstances known to the parties at the time they agreed to the language in this Collective Agreement. In this regard, the Employer emphasized that, going back to 2017, no employees had been granted STD benefits while awaiting a determination of their WSIB claim. More importantly, where employees first claimed STD benefits and then subsequently decided to pursue a WSIB claim, the Employer stopped providing STD benefits upon being notified of the change. 43. It is also consistent with the MOS agreed to by the parties. There the parties agreed the Employer would discuss the implications of an employee in receipt of STD benefits electing to apply for WSIB benefits and the effect, if any, on the continuation of short term disability benefits. It is noteworthy that here too, the parties did not agree that employees could access their STD benefits while waiting on their WSIB claim. This omission, like the failure to include any language in the Collective Agreement speaking to the possibility that STD benefits may need to be repaid, is a factor that favours the position of the Employer. Had the parties wanted to grant employees the right to access STD benefits while waiting on a WSIB claim they could have done so and could have included such language in the MOS. 44. Finally, I note that the cases relied on by Union do not stand for the proposition that employees are entitled to STD benefits while waiting for a WSIB claim to be determined. Both Arbitrator Knopf in Hamilton Civic Hospitals and Arbitrator Weatherill in Bendix Automotive of Canada Ltd speak to the desirability, from a policy perspective, of employees having access to income continuation where an employee is waiting on a determination of a claim by WSIB. However, Arbitrator Knopf and Arbitrator Dissanayake also note that while such income continuation may be desirable from a policy perspective, it must be based on the language of the collective agreement. Arbitrator Knopf noted that “we cannot accede to the Association’s request because we find the position compelling, just or meritorious. We can only allow the grievance if we find it is well founded on the language of the collective agreement or by the terms of HOODIP.” In Hamilton Civic Hospitals there was no language establish the right sought. In Brandt County there was. In the present case there also is no such language. 45. Accordingly, and for all of the foregoing reasons, the grievance is dismissed. Dated at Toronto, Ontario, this 29th day of May 2024. “Adam Beatty” ___________________ Adam Beatty, Arbitrator