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HomeMy WebLinkAbout1977-0145.Cooper.80-12-02Between: Before: For the Grievor: For the Employer: Hearing: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. K. Cooper - And - The Crown in Right df Ontario Ministry of Community & Social Services Professor K. P. Swan Vice-Chairman Mr. A. Reistetter Member Mr. S. R. Hennessy Member Mr. G. Richards, Grievance Officer' Ontario Public Service Employees Union Mr. S. Rae Employee Relations Officer Ministry of Community & Social Services September 9th, 1980 p’ -2- The grievor was at all material times employed by the Ministry of Connnunity and Social Services as a Maintenance Electrician at the Huronia Regional Centre in Orillia; he has worked there since 1953. The Centre has some 5 or 6 employees working as Maintenance Electricians, one of whom kas always scheduled on duty on weekends and holidays. The facts from which this grievance arises are mostly agreed between the parties. On May 23, 1977 the grievor reported to work. This was a statutory holiday, but Mr. Cooper was scheduled to work. There is some difficulty between the parties about precisely what occurred, but it appears that Mr. Cooper became ill on the job, reported to the emergency department of the Orillia General iiospital, and was advised to leave work for the remainder of the day. It is conunon ground that he was at work for 2 3/4 hours on the statutory holiday. The difficulty arises over the calculation of the amount of pay to which he is therefore entitled. The applicable provisions of the collective agreement then in force are all found in Article 19, which provides, in part: drticle 19 - Holiday Payment 19.1 Where an employee works on a holfday included under Article 9 of the employee Benefits Agreement, he shall be paid at the rate of time and one-half (14) for all hours worked with a.minimum credit of seven and one-quarter (7%~ or eight (8) hours, as applicable. . 19.2 In addition to the payment provided by section 19.1, an employee shall receive either .seven and one-quarter (7$) or eight (8) hours pay as applicable at his basic -3- hourly rate or compensation leave of seven and one-quarter (7%) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday. It is on the construction of clause 19.1 that this present grievance turns. The grievor works on an 8 hour shift schedule. The Employer actually paid the grievor 1% times his usual wages for the 2 3/4 hours actually worked only, plus the 8 hours holiday pay required by Clause 19.2. The grievor claims an entitlement to 8 hours at 1% times his usual wages under clause 19.1 plus the 8 hours holiday pay under clause 19.2. In essence, the dispute is whether the "minimum credit" provision of Article 19.1 applies to an employee who leaves early due to illness. Although the problem which comes to the Board for resolution is simply stated, there is little guidance available to assist in answering it. This Board has dealt with the substance of Article 19 on one previous OCCaSiOn, in Re Bell and Ministry of Community and Social Services, X6/78, a decision of a panel chaired by Professor Katherine Swinton on a grievance which also came from the Maintenance Department at Huronia Regional Centre. The Bell award is a good starting place, since it looks to the purpose of Article 19 to aid in understanding its provis~ions. On page 5 of that award, the following discussion of the purpose of holiday premiums appears. Pretiium payments for holiday work are designed to achieve the same purposes - tb compensate the employee at a bonus rate for work performed on a holiday to which he is entitled by the collective agreement or by statute and to discourage the employer from demanding Such work 12nless ; " -4- necessary or important. The importance of the entitlement to Statutory holidays is well described in Re Sealed Power Corp. of Canada Ltd. (1971), 22 L.A.C. 371 at 373 (Shime) as follows: Whatever the original social or religious reascns, certain statutory holidays are now a basic part of the Canadian industrial fabric and employees expect to receive the statutory holiday with payment or added compensation to their usual wage rate if they work on that day, while employers anticipate granting the statutory holiday or paying compensation in addition to the usual wage rate if they require their employees to work on those days... In mdst cases certain statutory holidays have become so entrenched that an employee will consider the day off with pay as a right rather than a privilege. The holiday is as an opportunity to engage in social or religious activity without loss of income, but it is also viewed as an opportunity for relief from the normal work pattern and its attendant psessures. With both the reasoning of our colleagues and the observations by Mr. Shime quoted, we respectfully agree. Beyond this general purposive statement, however, the dell award is of little aSSiStanCe, since the factual situation there did not advert to the effect on the premium payable of leaving work early due to illness. The following sentence does appear on page 6: An employee who is regularly scheduled to work'on a holiday is guaranteed a full day's pay at time and one- half by Article 19.1, even if he only works a few hours on that day. We do not, however,,regard this as anything but a paraphrase of . clause 19.1; it is not dispositive of the matter before us, nor could it have been intended to be. E -5- We therefore turn to the language of the collective agreement. Clause 19.1, we observe, is not triggered by the scheduling of work but by the performance of work, since the 8 hour guarantee operates Yw)here an employee works on a holiday". No distinction is made between scheduled work, call in work or any other kind; that is, indeed, the crux of the B~U award. There is no doubt that the grievor did work on May 23, 1977, and so at least prima facie the -- guarantee would apply. Had he been sent home after 2 3/4 hours because there was no more work to do, he would nevertheless have received 8 hours credit. We thus have to determine whether the fact that he left work after 2 3/4 hours due to'his own illness is of any significance to his entitlement. The Employer's position is simoly that the guarantee only applies where an employee is in fact available for work for the full guarantee period, whether or not he is actually required to work the fuil 8 hours. One arbitration award is advanced in support of this proposition, me ~ysor Industrial of Camda Ltd. and linited Automobile Workers, Local 347 (1976) 11 L.A.C. (2d) 284 (Brandt). That case included a Claim for a guaranteed minimum credit under a "reporting in" provision on the part of two employees who were sent home after reporting in because they were suspected of having been exposed to a very contagious disease, typhoid fever. The applicable provision of the collective agreement rendered the guarantee payable upon simply reporting in, so the fact that no work was actually performed was not there material, as it would appear to be under Clause 19.1 of the agreement before us. Otherwise -6- the case poses, despite.the factual difference, precisely the same problems as those to be resolved in the present grievance. In the Kysordecision, the learned arbitrator dealt with the problem in these words: I am of the opinion that the argument Of the company must be accepted and that art. 16.08 has no application in this case. It would appear that there can be no difference in principle between the situation where an employee reorts for work in an intoxicated condition and where, as here, he is a potential carrier of typhoid. In both cases he suffers a personal disability which disqualifies him from work. It is true that in the former case his disability is self-induced while in the latter it is not. However, that difference is irrelevant in terms of the obligation of the company to pay call-in pay. Surely it could not be argued that, because the intoxicated employee had reported in and because the operations had not been suspended, that art.16.08 should apply. Another example that makes the same point concerns the case of the employee who is too ill for work. If that employee re.xained home he would be docked a full day's pay. Surely such an employee cannot, by the device of reporting in for work, then claim four hours' call-in pay when he is sent home. It will be observed that the last hypothetical example posed by the learned arbitrator is, but for the fact that the guarantee arises from a different kind of provision, directly related to the present grievance. We have searched extensively for further jurisprudence on this issue, but there appears to be no other case in which such an ,. ..’ *- -7- argument has arisen. It remains then only to decide, in light of the observations made in the B&.Z award, whether we would come to the same conclusion as the zcysor award. On balance, and although the matter is not without some difficulty, we do. We would have been more ready to accept that reasoning had the parallel not been drawn with an employee who reports to work drunk, and had reference not been made to the "device" of reporting in when too ill to work in order to collect extra pay. There is nothing in the evidence in our case to suggest any im- propriety on the part of the grievor. Nevertheless, we are of the view that the guaranteed credit in clause 19.1 must be understood to be subject to the employee's continuing availability for work. Once the employee is found not to be capable of working, he is to be treated as provided for elsewhere in the collective agreement. In the case of illness on's holiday, an employee under this agreement simply receives holiday pay, and that is how Mr. Cooper was treated once he left work. An inability to work is different from a' lack of work to be done; and ought to be treated differently in interpreting guarantee clauses. The purpose of such clauses, to deter unnecessary scheduling or requiring of work on statutory holidays, is still preserved even if one requires an employee to be capable of working in order to benefit from the guarantee. In the result, the grievance is dismissed. Dated at Toronto this 2nd day of December, 1980. Professor K. P. Swan, Vice Chairman I concur A. Reistetter, Member dissent to follow S. R. Hennessy, Member DISSENT I agree with the majority position concerning the purpose of guarantee clauses and the fact that the guarantee involved in clause 19.l'is triggered by the perfomance of work. I must, with respect, disagree with their conclusion that the clause requires the employee to be continuously available for work. By simply usins "work" the gerties; in w opinion, intended only that an employee expend effort on behalf of the employer. I? the.?arties intended to place a restriction of the kind that the mjorit,B refers to then I believe the Darties ;rould or shouid have said so in specific language. Since they did not I Q not believe that this Board should, by iqlication, read such a reqtirement into clause 19.1. On the facts of this caSe the employee has arranged his scheduled affairs and attended at work and actually worked. Thus the employee has ful- filled his portion of the agreement~by disrupting his social or family life at the employer's request. To allow the employer, at this stage, to gain his part oh the bargain vithout the corresponding penalty vould, in n~,opinion, result in en unreasonable interpretation of clause 19.1.' I would therefore find that the griever was entitled to be paid for the fW.l eight hours at premium pay. If I emwrong in my interpretation of clause 19.1 and the parties did intend to place a restriction on the psgment of premium pay then I would have found that, in a situation in which the employee was not to blame for .the absence, a minimum of eight hours pey at straight time wes contemplated by the parties. This payment is made to the employee to compensate for the disruption of his social or family life and to prevent the employee from being totally &entitled to the benefits df clause 19.1. I would therefore have awarded the griever the difference be&wee= the tvo and three-quarter hours worked multiplied by time and one-half and the fuU eight hours straight time pay. SRH/lTr opeiu 491