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Home My WebLink About2011-0630.Carter.12-06-15 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#2011-0630 UNION#11-19 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Carter) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Jim Morrison Canadian Union of Public Employees - Local 1750 National Staff Representative FOR THE EMPLOYER Gurjit Brar Workplace Safety and Insurance Board Counsel HEARING April 19, 2012. - 2 - Decision [1] The grievor, Susan Carter, was hired in 2000 as a nurse consultant. In 2005 she and her daughter were attacked by a swarm of young people who beat them savagely. The grievor suffered from a broken wrist and damage to her eye. More importantly, for purposes of this grievance, she suffered from Post-Traumatic Stress Disorder (PTSD). [2] She applied for and was awarded short and long term disability benefits for a period of time but was denied by the insurer, Sun Life, in 2007. At that time the Employer placed her on an unpaid leave of absence. In accordance with the collective agreement she sued the insurer and reached a settlement with them in March of 2008 the terms of which were summarized in a letter from Sun Life to the Employer as follows: Ms. Carter commenced an action against Sun Life for further LTD benefits. That action was settled in February of 2008. I have enclosed a copy of the Minutes of settlement and Release for your information. The settlement was a negotiated amount for benefits, which represented approximately the arrears and 5 years of future benefits plus interest, costs and disbursements. [3] Since then the grievor has made efforts to return to work without success. The Employer maintains her status is “on approved Leave without pay” and the Union argues that she is off work while in receipt of LTD benefits. The characterization of her status has a significant bearing on her rights to benefits under the collective agreement. The grievor filed a grievance that stated as follows: Statement of Grievance I grieve the Employer acted in contravention of Articles 15.01, 11, Article 21 and Appendix 2 of the Collective Agreement and any other relevant sections of the Collective Agreement and the Crown Employees’ Collective Bargaining Act or Related Legislation. I have been treated unjustly when the employer… Placed me on unpaid LOA in 2007 and did not acknowledge an award from LTD Carrier – Sun Life as “LTD benefits providing me with the entitlement to pensionable service time, benefits and continuous service. Settlement required includes but is not limited to FULL REDRESS -retroactive vacation and attendance credits -recognition of pensionable service for period of LTD payment. -adjustment to continuous service date per LTD payment -payment of health care benefits per collective agreement noting LTD payment. -recognition of 2007 date as “absence due to illness” The relevant provisions of the collective agreement read as follows: 12.02 – Definition - 3 - It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to the whether a matter is arbritrable. In such cases the procedure set out below will be followed. 12.08 Arbitration … The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement. … 4.02 No Accumulation of Seniority Seniority will not accrue during periods of Layoff or after the 60th working day of a General Unpaid Leave. 11.01 Calculation of Vacations … An employee will not accumulate vacation entitlement after any unpaid absence of 60 (60) consecutive working days. Accumulation will resume upon the employee’s return to work. Where the Employer returns to work for less than five (5) consecutive working days, the absence will be considered continuous. ATTENDANCE CREDITS 15.01 Amount of accumulation One and one-half (1 1/2) days for each full calendar day of work employment. An employee will not accumulate attendance credits after any unpaid leave of sixty (60) consecutive working days . Joint Insurance Benefits Review Committee 7. LTD Insurance Plan Disputes regarding disputes to LTD benefits are between the Plan carrier and the Employee. The Employer’s obligation is limited to providing an LTD Insurance Plan in accordance with the Collective Agreement. Article 28 PENSIONS The Employer and the Union recognize that the Administration of the WSIB Employees Pension Plan has a fundamental fiduciary obligation to act in the best interests of the pension plan members. The Employer will maintain the WSIB Employees Pension Plan as prescribed and continued under section 17(3) of the Workplace Safety and Insurance Act during the term of this Collective Agreement subject to the terms of the WSIB Employees Pension Plan as set out in O. Reg. 455/9 and as amended from time to time. - 4 - [4] There are two Letters of Understanding attached to the collective agreement that refer to pensions: one refers to reciprocal agreements regarding the transfer of pension credits; the other refers to funding strategies for the future. [5] This award concerns a preliminary objection by the Employer to my jurisdiction to hear this grievance. It takes the position that, since 2007, she has been on an unpaid leave of absence and the provisions of the collective agreement state clearly that an employee on an unpaid leave of more than 60 days does not accumulate vacation credits, attendance credits or seniority. Her entitlement to the benefits under the collective agreement is linked to her entitlement to LTD benefits. Because Sun Life discontinued her LTD payments, the collective agreement defines her entitlement and this Board is specifically denied the authority to determine whether she should have been entitled to those benefits she is claiming under the collective agreement. Any dispute she had with the insurer was dealt with through her civil suit. In the meantime she has been on an unpaid leave of absence. [6] The Employer submitted that this grievance asks me to decide whether the grievor obtained LTD payments from the insurer, an issue that is between the insurer and the grievor and not within the jurisdiction of the GSB. [7] In support of its position, the Employer relied on Re West Parry Sound Health Centre and Ontario Nurses’ Association [2008] O.L.A.A. No. 705 (J. Parmar) and Re Niagara (Regional Municipality) and Ontario Nurses’ Association [2011]No. 174 (L. Slotnick). [8] The Union took the position that the grievor’s settlement with the insurer resulted in a retroactive payment of LTD benefits and the equivalent of five years of LTD payments into the future. The settlement altered her status from an employee on an unpaid leave of absence to an employee in receipt of LTD benefits and re-established her entitlement to benefits. DECISION [9] There is no dispute between the parties about the facts of this case. The grievor suffered an injury that resulted in LTD payments for the first two years of her illness, commonly referred to as “own occupation”. She was denied benefits for the next phase of her claim, commonly referred to as “any occupation”. She sued the insurance company and reached a settlement that was described “the arrears and 5 years of future benefits plus interest, costs and disbursements”. [10] While she was pursing this civil action, the Employer placed her on an unpaid leave of absence which, according to the terms of the collective agreement, affected her entitlement to various provisions of the collective agreement, including vacation credits, attendance credits, benefits, seniority and pension credits. - 5 - [11] The dispute between the parties lies in the proper characterization of that settlement. The Employer takes the position that the settlement is not a reinstatement of her LTD benefits but simply a monetary agreement on the appropriate damages. The full settlement specifically states there was no admission of liability and contains a full release by the grievor of all future claims against the insurer. The union asserts that the allocation of the settlement to retroactive and future payments is proof that it was intended as LTD payments. [12] I am not being asked to determine whether the grievor was entitled to LTD benefits under the LTD Plan. That clearly is a matter between the grievor and the insurer and I do not have the jurisdiction to decide that question. [13] I am being asked to determine whether the agreement between the insurer and the grievor reinstated her entitlement to LTD benefits. That raises a question concerning the interpretation and application of the terms of the settlement. That is a matter within the jurisdiction of the GSB. A decision on that question will involve consideration of the grievor’s employment status and the effect, if any, on her future eligibility to benefits, including the pension plan. [14] For these reasons the preliminary objection to my jurisdiction is dismissed. Dated at Toronto this 15th day of June 2012. Loretta Mikus, Vice-Chair