HomeMy WebLinkAboutTrudelle 08-08-22IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 147
- and -
THAMES EMERGENCY MEDICAL SERVICES INC.
GRIEVANCE OF CATHY TRUDELLE
JANE H. DEVLIN SOLE ARBITRATOR
ESI CODJOE, FOR THE UNION
B.R. BALDWIN, FOR THE EMPLOYER
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The Grievor, Cathy Trudelle, claims that during her pregnancy and
parental leave in 2006, she was improperly denied Supplementary Unemployment
Benefit (SUB) plan payments provided for in Article 13 of the collective agreement.
Prior to her leave, the Grievor was working on a part-time basis.
Article 13 provide as follows:
ARTICLE 13 - PREGNANCY/PARENTAL LEAVE
13.01Pregnancy and parental leave will be granted in accordance with the
provisions of the Ontario Employment Standards Act and amendments
thereto. Benefit coverage shall be maintained by the Employer for such
period of pregnancy and parental leave covered by Employment
Insurance benefits.
13.02In respect of the period of pregnancy leave, payments made according to
the Employer’s Supplementary Unemployment Benefit Plan will consist of
the following:
(a)For the two week employment insurance waiting period, effective
May 5, 2004, payments equivalent to seventy-five percent (75%)
of the actual weekly rate of pay for her classification, which she
was receiving on the last day worked prior to the commencement of
the pregnancy leave; and
(b)Up to a maximum of fifteen (15) additional weeks, on effective (sic)
May 5, 2004, payments equivalent to the difference between the
sum of the weekly Employment Insurance (EI) benefits the
employee is eligible to receive and any other earnings received by
the employee, and eighty (80%) of the actual weekly rate of pay
for her classification, which she was receiving on the last day
worked prior to the commencement of the pregnancy leave.
13.03In respect of the period of parental leave, payments made according to
the Employer’s Supplementary Unemployment Benefit Plan will consist of
the following:
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(a)For the two week Employment Insurance (EI) waiting period, May
5, 2004, payments equivalent to seventy-five percent (75%) of the
actual weekly rate of pay for her/his classification, which she/he
was receiving on the last day worked prior to the commencement of
the parental leave; and
(b)Up to a maximum of ten (10) additional weeks, May 5, 2004,
payments equivalent to the difference between the sum of the
weekly EI benefits the employee is eligible to receive and any other
earnings received by the employee, and eighty percent (80%) of
the actual weekly rate of pay for her/his classification, which she/he
was receiving on the last day worked prior to the commencement of
the parental leave.
13.04The Employer will not require a pregnant employee to take light duties
unless a doctor’s note is provided which supports such assignment.
13.05An employee who is unable to fulfill her normal duties as a result of
medical issues arising from her pregnancy may request a transfer to light
duties. Where no light duties are available, the employee, may, at her
option, commence either sick leave or pregnancy leave.
It is the position of the Employer that the Grievor was not entitled to SUB
plan payments because, as a part-time employee, she received a percentage in lieu of
benefits. In support of this position, the Employer relied on Article 40.04 of the
collective agreement and this Article, in the context of Article 40, provides as follows:
ARTICLE 40 - WELFARE AND PENSION BENEFITS
40.01Each full-time employee shall be entitled to:
(a)Coverage under the welfare and pension benefits plans on the first
(1st) day of the month following completion of three (3) months’
service with the Employer;
(b)Specific details of the plan are as contained in the booklet provided
by the carrier which forms part of this Agreement.
(c)Article 40.01 takes effect for new hires after the date of ratification.
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40.02The Employer will pay one hundred percent (100%) of the premium cost
of the following:
(a)Extended Health Benefits (Blue Cross or carrier with equivalent
benefit coverage with periodontics/major restorative/orthodontics);
(b)Cost of the group plan, as referred to in Schedule “B” attached
hereto;
(c)Cost of the group plan as referred to in Schedule BB attached
hereto.
40.03The Employer agrees to maintain the OMERS pension plan into which
regular contributions will be made in accordance with the Plan.
40.04Effective January 1, 2004, there will be a percentage in lieu of any
benefits paid to part time employees of four percent (4%) of non-overtime
earnings. This is exclusive of any statutory holiday pay entitlement or
vacation pay entitlement but is in lieu of any other full-time benefit.
Effective October 1, 2004, this percentage will increase to five percent
(5%). Effective October 1, 2005, this percentage will further increase to
six percent (6%).
The material facts, which were outlined by the parties, are as follows: The
Grievor has worked as a Paramedic I with Thames Emergency Medical Services Inc.
(“Thames EMS”) since April, 2002. She received training at Fanshawe College and
also attended the University of Western Ontario where she studied kinesiology and
health sciences. Before relocating to London in 2002, the Grievor worked as a
Paramedic in Hamilton.
During her employment with Thames EMS, the Grievor has worked on
both a full-time and part-time basis and for various reasons, such as additional vacation
time and child care arrangements, she has transferred from full-time to part-time status.
Before taking pregnancy and parental leave in 2005, the Grievor was working on a full-
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time basis. When she returned to work in March, 2006, she decided to work on a part-
time basis due, in part, to the need for accommodation. The Grievor began the
pregnancy and parental leave which is the subject of the grievance in the third week of
August, 2006 and her baby was born on September 9, 2006. Following the two week
waiting period, the Grievor received employment insurance benefits of approximately
$413.00 per week, less statutory deductions.
The bargaining unit is comprised of approximately 200 employees
including 80 men and 36 women who work on a full-time basis and 41 men and 20
women who work on a part-time basis. Most female employees are on the lower levels
of the seniority list. It is the practice of most female part-time employees and all male
part-time employees to work elsewhere and that may involve full-time employment with
another employer. Most, but not all, female employees who are of child bearing age
typically work on a full-time basis before taking pregnancy and parental leave.
Part-time employees also regularly apply for postings to obtain vacant full-
time positions. In this regard, the Employer made reference to an employee by the
name of Linda Jackson who began work on a full-time basis in 2000 and transferred to
part-time status in June, 2003. She then resumed working on a full-time basis in April,
2006 immediately prior to taking pregnancy and parental leave. On her return from
leave, Ms. Jackson worked on a part-time basis. There was no suggestion that the
Union was aware of Ms. Jackson’s various changes in status. Moreover, the parties
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agreed that the language of the collective agreement is clear and unambiguous and
that the agreement ought to be interpreted according to its terms.
It was the submission of Ms. Codjoe, on behalf of the Union, that effect
must be given to the express language of the collective agreement and that the
language should be given its plain and ordinary meaning. Ms. Codjoe further submitted
that the provisions of the agreement must be considered as a whole with a view to
ascertaining the intention of the parties. Ms. Codjoe contended that under the
agreement, some benefits are provided to both full-time and part-time employees and
that in respect of other benefits, the parties have clearly distinguished between the
entitlement of full-time and part-time employees. In this regard, Ms. Codjoe pointed to
a number of provisions of the agreement, such as those dealing with compassionate
leave, attendance in court, meal allowance and shift premium, in which the term
“employee” is used. Ms. Codjoe submitted that this term refers to all members of the
bargaining unit and, accordingly, these benefits are provided to both full-time and part-
time employees. In contrast, Ms. Codjoe pointed to other provisions of the agreement,
such as those dealing with seniority, sick leave and health and welfare benefits, which
are specified to apply to full-time employees only.
With regard to Article 13, Ms. Codjoe noted that this Article provides that
pregnancy and parental leave will be granted in accordance with the provisions of the
Employment Standards Act. Ms. Codjoe contended that under the Act, both full-time
and part-time employees are entitled to leave. Article 13 of the collective agreement
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also sets out the payments to be made under the SUB plan and Ms. Codjoe pointed out
that in those provisions, the term “employee” and the terms “she” and “she/he” are
used. Accordingly, Ms. Codjoe contended that both full-time and part-time employees
are entitled to SUB plan payments and that in contrast to Articles dealing with matters
such as seniority, there is nothing in Article 13 to restrict the application of the plan to
full-time employees. It was also submitted that the SUB plan is a unique benefit, which
is tied to the receipt of employment insurance benefits and is distinct from benefits such
as vision care and dental coverage, which are provided to full-time employees under
Article 40 of the collective agreement. Ms. Codjoe submitted, as well, that there is
nothing in Article 40.04 of the agreement to suggest that the SUB plan falls into the
category of a “full-time benefit” for which the percentage in lieu of benefits is paid to
part-time employees. In the result, in the absence of express language restricting the
application of the SUB plan to full-time employees, Ms. Codjoe contended that both full-
time and part-time employees are entitled to payments under the plan.
It was the submission of Mr. Baldwin, on behalf of the Employer, that in
accordance with Article 40.04 of the collective agreement, the percentage in lieu of
benefits paid to part-time employees is exclusive of statutory holiday pay and vacation
pay but in lieu of any other full-time benefit. Mr. Baldwin contended the term “full-time
benefit” in Article 40.04 applies to all monetary benefits provided to full-time employees
and, accordingly, includes SUB plan payments which are provided to full-time
employees under Article 13 of the collective agreement. Mr. Baldwin maintained that
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the interpretation advanced by the Union fails to give meaning to the phrase “any other
full-time benefit” in Article 40.04 of the agreement.
Mr. Baldwin further contended that under Article 40.04, the parties
specifically excluded statutory holiday pay and vacation pay from the percentage in lieu
of benefits and created separate entitlements for part-time employees. It was
submitted, however, that there is no similar exclusion for SUB plan payments and that,
on that basis, I ought to find that such payments are encompassed by the percentage in
lieu of benefits. Mr. Baldwin also noted that on its face, Article 32 of the collective
agreement, which deals with vacation, does not distinguish between full-time and part-
time employees. He contended, as well, that the parties did not limit the percentage in
lieu of benefits to health and welfare benefits but specified instead that the payment is
in lieu of any other full-time benefit, apart from statutory holiday pay and vacation pay.
If the percentage in lieu of benefits applied only to health and welfare benefits, Mr.
Baldwin submitted that there would be no need to refer to statutory holiday pay and
vacation pay.
Were it not for the provisions of Article 40.04, Mr. Baldwin acknowledged
that part-time employees would be entitled to SUB plan payments during pregnancy
and parental leave under Article 13 of the collective agreement. However, given the
language of Article 40.04, it was submitted that the SUB plan represents a full-time
benefit for which the percentage in lieu of benefits is paid to part-time employees. Mr.
Baldwin also submitted that the term “benefit” ought to be broadly construed and that
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SUB plan payments represent a form of wage benefit. Moreover, it was contended that
in the absence of clear and unambiguous language, monetary obligations should not be
imposed upon an employer. Mr. Baldwin further submitted that the Union can raise the
issue of SUB plan payments for part-time employees during the next round of
bargaining. Mr. Baldwin also contended that in considering the nature of the agreement
reached between the parties, account must be taken of the fact that most part-time
employees work elsewhere on a full-time basis and would, in all likelihood, have a right
to SUB plan benefits from another employer.
By way of reply, Ms. Codjoe submitted that the term “full-time benefit” in
Article 40.04 of the collective agreement refers to the health and welfare benefits, such
as vision care and dental coverage. Ms. Codjoe further submitted that the parties
referred to holiday pay and vacation pay in Article 40.04 because it was necessary to
set out the entitlement of part-time employees under the Employment Standards Act.
Ms. Codjoe contended, as well, that the reference to holiday pay and vacation pay in
Article 40.04 is not sufficient to extend the scope of a “full-time benefit” to encompass
SUB plan payments to which part-time employees are entitled under Article 13 of the
collective agreement. By way of surreply, Mr. Baldwin submitted that it was not
necessary to refer to the statutory entitlement to holiday pay and vacation pay because
under a collective agreement, it is open to the parties to agree to a greater benefit than
the minimum standards contained in the Employment Standards Act.
Decision
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The issue to be decided is whether the Grievor was improperly denied
SUB plan payments during her pregnancy and parental leave in 2006. In addressing
this issue and in construing the provisions of the collective agreement, there appeared
to be no dispute that it is appropriate to give the words of the agreement their usual and
ordinary meaning unless that approach would lead to an absurdity. It is also
appropriate to consider the provisions of the agreement as a whole with a view to
ascertaining the intention of the parties: see, by way of example, Wenoah House, a
Division of W.J. Stelmaschuk and Associates Ltd. and Ontario Public Service
Employees Union, Local 325 [1999] O.L.A.A. No. 426 (Whitaker); Re DHL Express
(Canada) Ltd. and C.A.W.-Canada, Locals 4215, 144 & 4278 [2004] C.L.A.D. No. 613
(Hamilton) and Ontario Public Service Employees Union, Local 256 and the City of
Hamilton [2008] O.L.A.A. No. 322 (Whitaker).
The subject of pregnancy and parental leave is dealt with in Article 13 of
the collective agreement and Article 13.01 provides that leave will be granted in
accordance with the provisions of the Employment Standards Act. Under the Act,
leave is available to both full-time and part-time employees. Article 13.02 of the
agreement then sets out the payments to be made under the Employer’s SUB plan
during pregnancy leave and Article 13.03 sets out the payments to be made under the
plan during parental leave. These Articles provide for payments to be made during the
two week waiting period prior to the receipt of employment insurance benefits and for a
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top-up of employment insurance benefits for a specified number of weeks thereafter.
With regard to the top-up, Articles 13.02 and 13.03 provide for payments equivalent to
the difference between the sum of weekly employment insurance benefits the employee
is eligible to receive and any other earnings received by the employee and 80% of the
actual weekly rate of pay for her or her/his classification prior to the commencement of
pregnancy or parental leave. Accordingly, as is customary, SUB plan payments are tied
to the entitlement to employment insurance benefits and I note that in Article 13, the
term “employee” is used. There is nothing in that Article which limits the application of
the SUB plan to full-time employees.
It is necessary, then, to consider Article 13 in the context of other
provisions of the collective agreement and, as noted by the Union, there are a number
of Articles in which the term “employee” is used. These Articles deal with matters such
as compassionate leave, attendance in court, meal allowance and shift premium. In
other Articles of the agreement, such as those dealing with the probationary period, job
postings, uniforms, hours of work and shift changes, certain provisions are specified to
apply to full-time employees and others, to part-time employees. There are also
provisions of the agreement, such as those dealing with seniority, sick leave and health
and welfare benefits, which are specified to apply to full-time employees only.
Accordingly, it is apparent that in a number of Articles, the parties have drawn
distinctions between full-time and part-time employees and have expressly limited
particular benefits to full-time employees. As noted previously, there is nothing in
Article 13 that purports to limit the application of the SUB plan to full-time employees.
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At this juncture, therefore, consideration must be given to Article 40.04 of
the collective agreement, which is relied on by the Employer. That Article is contained
in Article 40, which is entitled welfare and pension benefits and Article 40.01 provides
that full-time employees are entitled to coverage under welfare and pension benefit
plans, which include extended health coverage and life insurance which are referred to
in Article 40.02. In Article 40.03, the Employer agrees to maintain the OMERS pension
plan to which contributions are to be made in accordance with the plan. Article 40.04
provides that effective January 1, 2004, a percentage in lieu of benefits is to be paid to
part-time employees amounting to 4% of non-overtime wages. Effective October 1,
2004, the payment was increased to 5% and effective October 1, 2005, the payment
was increased to 6%. The Employer advised that under the current collective
agreement, which expires in the fall of 2008, the payment is 10% of regular wages. In
any event, Article 40.04 also provides that the percentage in lieu of benefits is exclusive
of statutory holiday pay and vacation pay entitlement but in lieu of any other full-time
benefit.
Although the Union submitted that the percentage in lieu of benefits is
intended to compensate part-time employees for health and welfare benefits provided
to full-time employees, the Employer contended that it has broader application and
compensates employees for any monetary benefit provided to full-time employees.
Accordingly, on the Employer’s interpretation, the percentage in lieu of benefits would
compensate part-time employees for benefits such as compassionate leave, which is
dealt with in Article 9 of the collective agreement.
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As noted above, under Article 40.04, statutory holiday pay and vacation
pay are expressly excluded from the percentage in lieu of benefits and the Employer
submitted that in the absence of a similar reference to SUB plan payments, I ought to
conclude that those payments are included in the percentage in lieu of benefits. In
support of this submission, the Employer relied on the principle of expressio unius,
exclusio alterius, meaning that the express mention of one person or thing implies the
exclusion of other persons or things of the same class which are not mentioned. The
Employer also referred to two authorities in which this principle was applied: see
Cambrian College of Applied Arts and Technology v. Ontario Public Service Employees
[2005] O.L.A.A. No. 383 (Bendel) and Rainy River District School Board v. Canadian
Union of Public Employees, Local 65 [2006] O.L.A.A. No. 614 (Marcotte).
In this case, the provisions of the collective agreement dealing with
designated holidays and vacation contain separate holiday pay and vacation pay
entitlements for full-time and part-time employees. Accordingly, as part-time employees
are entitled to statutory holiday pay and vacation pay, those benefits are specifically
excluded from the percentage in lieu of benefits. Although there is no similar exclusion
for SUB plan payments, I note that provisions such as Article 40.04 frequently refer to
holiday pay and vacation pay as issues often arise as to whether such benefits are
included or excluded from a percentage in lieu of benefits paid to part-time employees.
Moreover, in interpreting Article 40.04, it is necessary to consider not only the exclusion
of statutory holiday pay and vacation pay but also the balance of the provision, which
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specifies that the payment is “in lieu of any other full-time benefit”. Although the
Employer submitted that the term “full-time benefit” applies to any monetary benefit
provided to a full-time employee, whether or not the benefit is provided exclusively to
full-time employees, I cannot accept that submission.
In my view, the term “full-time benefit” in Article 40.04 refers to benefits
provided to full-time employees to which part-time employees are not entitled. “In lieu
of” or instead of those benefits, part-time employees receive a percentage of non-
overtime or regular wages. Accordingly, I find that the term “full-time benefit” in Article
40.04 refers to a benefit provided only to full-time employees. In my view, the term
cannot be interpreted in a manner which would deprive part-time employees of benefits
to which they are entitled under other provisions of the collective agreement.
As noted previously, Article 13 of the collective agreement provides that
pregnancy and parental leave will be granted in accordance with the Employment
Standards Act and there appeared to be no dispute that these forms of leave are
available to both full-time and part-time employees. Article 13 also provides for SUB
plan payments during specified weeks of pregnancy and parental leave and those
payments are tied to the entitlement to employment insurance benefits. Under that
Article, the term “employee” is used and in contrast to a number of other Articles of the
agreement, there is nothing in Article 13 which purports to limit SUB plan payments to
full-time employees. In fact, the Employer did not dispute that part-time employees
would be entitled to SUB plan payments were it not for the provisions of Article 40.04.
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In my view, however, Article 40.04 does not have the effect of depriving
part-time employees of SUB plan payments to which they are entitled under Article 13
of the agreement. Article 40.04 provides for a percentage in lieu of benefits to be paid
to part-time employees which is exclusive of statutory holiday pay and vacation pay but
in lieu of any other full-time benefit. For the reasons set out, I find that a “full-time
benefit” is one to which part-time employees are not entitled. In lieu of such benefits,
part-time employees receive a percentage of regular wages.
As to the awards relied on by the Employer, reference was made to a
number of cases in which it was held that the term “benefit” or “benefits” must be
broadly construed and cannot be limited to fringe benefits. These included Camp Hill
Medical Centre and N.S.G.E.U. (1992), 25 L.A.C.(4th) 58 (Slone); S.E.I.U., Local 268
and U.S.W.A., Local 5481 (1994), 43 L.A.C.(4th) 76 (Aggarwal) and Re McMaster
University [2008] O.I.P.C. No. 23. Reference was also made to a number of awards in
which it was found that the percentage in lieu of benefits paid to part-time employees
was intended to compensate those employees for various benefits, consisting of
employer pension contributions, special compensation payable on termination and the
Ontario Health Premium: see Okanagan Mainline Municipal Labour Relations Assn. v.
Canadian Union of Public Employees, Local 608 (1994), 40 L.A.C.(4th) 406 (Taylor);
Regional Municipality of Peel (c.o.b. Vera M. Davis Community Care Centre) and
United Food and Commercial Workers International Union, Local 175 [1999] O.L.A.A.
No. 272 (Solomatenko); Ontario Public Service Employees Union v. Ontario Property
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Assessment Corp. [2001] O.L.A.A. No. 270 (Howe) and Royal City Ambulance Service
Ltd. v. Ontario Public Service Employees Union, Local 231 [2008] O.L.A.A. No. 135
(Roberts).
I agree with the Employer that the term “benefit” is not necessarily limited
to health and welfare benefits. However, in Article 40.04, the term “full-time benefit” is
used and, for the reasons set out previously, I find that the term applies to a benefit
which is provided to full-time employees to which part-time employees are not entitled.
Moreover, the awards referred to by the Employer which dealt with a percentage in lieu
of benefits paid to part-time employees involved different collective agreement
language and did not concern SUB payments, which are in issue in this case.
The Grievor, Ms. Trudelle, received employment insurance benefits during
her pregnancy and parental leave in 2006 and, for the reasons set out, I find that as a
part-time employee, she was entitled to SUB plan payments provided for under Article
13 of the collective agreement. Although many part-time employees of Thames EMS
may work elsewhere, there was no suggestion that the Grievor had a right to SUB plan
payments under a plan with another employer. In the result, the grievance is allowed
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and the matter of remedy is remitted to the parties. I shall remain seized to deal with
this issue and for purposes of implementation or clarification of this award.
DATED AT TORONTO, this 22nd day of August, 2008.
“Jane H. Devlin”
Sole Arbitrator