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HomeMy WebLinkAbout1978-0117.Guillemette.81-05-13IN THE MATTER OF AN ARBITRATION ,Under The CROWN EKPLOYEES COLLECTIVE BARGAINIXG ACT Before TRE GRIEVANCE SETTLEMENT 30AR3 Between: Before: For the Grievor: - For the Employer: Bearing: F. H. Gcillemette - And - The Crown in Rig!it of Ontario (Ministry of Health) E. B. Jolliffe, Q.C. Vice Chairman A. G. Stapleton Member I. J. Thomson Member G. Richards, Grievance Officer Ontario Public Service Employees Union C. Riggs, Counsel Hicks, hlorley, Hamilton, Stewart si Storcy February 19, 1981 -2- There are two issues in this case, both of which call for the interpretation and application of certain language to a given set of facts. Two different collective agreements have been > put before the Board. The first issue, which the Board has been asked to decide before proceeding further, is which one of those agreements is applicable to the grievor's claims. On the first issue, the only evidence tendered to the Board consisted of four exhibits: the two agreements (made in 1974 and 1977) and applications for disability benefits made by the grievor in 1976 and 1978. For other knowledge of the relevant facts, the Board must rely on statements made by representatives of the parties at the hearing of this case. On material matters, the parties appear to be in substantial agreement, although the Board's task would be less difficult if an agreed statement of facts had been filed in writing. The second issue relates to the meariing of whichever agreement is applicable, specifically: whether the employer is entitled to deduct from the grievor's long term income protection benefits all or part of a partial disability pension from the Workmen's Compensation Board, awarded to him as the result of an accident incurred in the private sector some 5 years before he became a public servant. On this issue the parties' representatives re- -3- served the right to call further evidence if it should seem necessary to ascertain the history and nature of the condition from which the grievor suffers. Set out in chronological order, the undisputed facts are as follows: 1. In March, 1962, while still a young man employed by Hollinger Mines Ltd., Mr. F. H. Guillemette, the grievor in this case, suffered an accident. 2. Some time thereafter the grievor was awarded by the Workmen's Compensation Board a 15 percent disability pension which until 1977 amounted to $47.25 per month. 3. Between May and July of 1962, the grievor was a patient at the Toronto General Hospital. 4. In 1967,. the grievor commenced employment as a Steam Plant Engineer at an Ontario Government institution in North Bay and continued working until~November, 1974. 5. On July 9; 1974, representatives of the employer and of employees signed a document, Exhibit 1, styled "Agreement on Employee Benefits", and stated to form (as Appendix 5) part of a master agreement dated December 21, 1972. 6. On or about November 29, 1974, the grievor (for reasons which are not in evidence) took sick leave, commonly described as "Short Term Leave", and from December, 1974,to March, 1975, he was a patient under treatment at St. Mary's Hospital, but the treatment and -4- the nature of his condition are not clear from the evidence submitted to date. 7. On July 20, 1976, the grievor applied (Exhibit 3) for the "Long Term Disability Benefit" (as it was styled on the form) which would become payable on the expiration of accumulated sick leave credits, a plan carried at that time by the London Life Insurance Company and later by the Confederation Life Insurance Company. 8. On March 24, 1977, the grievor became eligible for "Long Term Income Protection" (as it is now called) having exhausted his sick leave and other credits. 9. On May 2, 1977, the Employer and the Ontario Public Service Employees Union signed a new benefit agree- ment (Exhibit 2), stated to be effective from October 1, 1976,to September 30, 1977. It specifically provided in 4.1(a) for "Long Term Income Protection",~ amounting to two-thirds of the employee's gross salary at the date of disability, subject to certain adjustments which must be discussed later in this decision. 10. On July 3, 1977, the grievor began to receive payments pursuant to the "Long Term Income Protection Plan". 11. On or about the same date, July 3, 1977, the Workmen's Compensation Board increased the grievor's partial disability pension from 15 percent to 25 percent, being an increase (as the Board was informed) of $43.50 per month to a total of $90.75 per month. -5- 12. On April 21, 1978, the grievor made applica- tion (Exhibit 4) on the London Life form for "Continued~ Total Disability Benefits". 13. The Employer took the position, with which the Union does not agree, that the 1977~ increase in the W.C.B. pension, said to be $43.50 per month, should properly be deducted from the L.T.I.P. benefit, andit was so deducted. 14. The Union concedes that $599.41 per month was the gross amount payable under the Long Term Protection Plan, and that it was correctly reduced by $173.53, the amount paid to the grievor under the Canada Pension Plan, so that the net L.T.I.P. payment would be $425.88. 15. The Employer concedes that as long as the W.C.B. pension amounted to only $47.25 per month, it was' not deducted from the sick leave and L.T.I.P. payments made to the grievor, but asserts that the failure to deduct was purely ez qratia. 16. On a date (which is not legible) in 1978, Mr . Guillemette filed a grievance (referred to arbitration on June 16, 1978) stating that: I hereby grieve that I an not receiving i ‘~21 benefits as per Section 4.1(a) of the employee fringe benefits agreement. As "settlement required", the grievor said: All benefits applicable to this section which have been denied. - 6 - In brief, the Union's submission is that the grievor's'entitlement to L.T.I.P. commenced on March 24, 1977, that the date of "eligibility" is governed by the s%cond agreement, i.e. by Section 4.la) in the agreement signed on May 2, 1977 ( and stated to be effective from October 1, 1976,to September 30, 1277) and that the grievor is entitled to recover the moneys deducted as a result of the increase in the Workmen's Compensation Board pension. The Employer's case is that the grievor's rights "crystallized" on November 29, 1974, when he took sick leave, that the matter is therefore governed by the first agreement, i.e. the agreement made on July 9, 1974, and that the deductions were not made improperly under that agreement. The representative of the grievor urged the Board to determine first the issue posed above: whether the first agreement or the second agreement governs the L.T.I.P. rights of Mr. Guillemette. For that reason the facts in the chronology set out above were explained, four exhibits (the two agreements and the grievor's two applications) were filed on consent and no other evidence was tendered. The grievor, who apparently remains in Timmins, was not present at the hearing. The relevant language in Exhibit 1, the first agreement (the 1974 agreement) was as follows: b -a- 4.1 a) The Long Term Income Protection benefit is sixty-six and two-thirds percent (66-2/3%1 of the employee’s gross salary at the date of disability, in- cluding any retroactive salary adjust- ment to which the employee is entitled, reduced by the total of other disability or retirement benefits payable under any other plan toward which the, employer makes a contribution except for Workmen’s Compensation benefits paid for an unrela- ted disability, and such benefits are payable until the employee recovers, dies, or reaches 65 years of age. bl Long Tern Income Protection benefits commence after a qualification period of six (6) months from the date the employee becomes totally disabled or the expiration of accumulated sick leave credits, whichever is later. Cl Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured empZoyee to per- form any and every duty of his norma occupation durin? the quaZification period and during the fzrst 24 months of benefit period; and thereafter during the balance of the benefit period, the inability of the employee to perform any and every duty of any gainful occupation for which he is reasonably fitted by education, training or experience. 4.2 The empZoyer wiZZ make pension contribu- tions on behalf of the employee, while the employee receives, or is qualified to receive, L.T.I.P. benefits under the plan. 4.3 The empZoyer sh2.L: ;r,crtt Zeave-of-absence with pay up to 15 days in any attendance year to an employee who has exhausted his attendance credits, vacation credits, overtime credits and U.I.C. credits prior to becoming eligible for L.T.I.?. benefits, and the period of the leave shall be deducted from future credits which he may acquire through subsequent employment. - 9 - 4.4 A record of employment if required in order to claim Unemployment In- surance Commission sickness nnd dis-’ ability benefits will be granted to an employee and this document shall not be considered as termination of employment. 4.5 Long Term Income Protection coverage will terminate at the end of the calendar month in which an employee ceases to be a civil servant. If the employee is totally disabled on the dnte his insurance terminates, he shall continue to be insured for that disabizity. 4.6 If, within three 131 months after benefits from the L:T.I.P. plan have ceased, an employee has a recurrence of a disability due to the same or a related cause, it will not be necessary to satisfy six (6) month qualification period again. It must be kept in mind: (a) that the first agreement (which the Employer considers applicable to this case) was signed on July 9, 1974, and that the grievor took sick leave on or about November 29. 1974. (b) that the second agreement (which the Union considers applicable.to this case) was signed on May 2, 1977, stated to be effective from October 1, 1976. and that the grievor had become eligible for "Long Term Income Protection" on March 24, 1977. A central point in the argument made by the Employer's counsel is that the griever's rights "crystallized" on November 29, 1974, because he became "totally disabled" - 10 - on that date. That contention must be rejected for three . reasons. The first is that when an employee takes sick leave, it cannot be assumed he is "totally disabled". Such an assumption can -never be validated by hindsight: i.e. merely because total disability is recognized at some later time does not mean that the case was hopeless at the outset, particularly if the employee, like,the grievor, was only about 43 years of age at the time. Most employees take sick leave temporarily and many re- cover after being critically ill for.weeks or even months. (Indeed, the parties recognized in 4.6 of the subsequent agreement that it is possible for an employee to draw L.T.I.P. benefits for some time and then resume working, even if it be only temporarily.) The second reason for rejecting the argument is that the employee's rights in November, 1974, were not limited to the right to enjoy in future L.T.I.P. benefits after a qualifying period. He had other rights, notably the immediate right to take sick leave for valid reasons, and that is the only right which actually "crystallized" in November, 1974. Indeed, at that time, he had no exist- ing right at all to L.T.I.P.; no one could know whether in fact he would ever become eligible. Actually he did not become eligible (according to the information given this Board by the parties) until March 24, 1977 --- 28 months - 11 - after taking sick leave. The third reason for rejecting the argument is also to be found in the second agreement quoted above. That agreement in 4.lb) makes clear that an employee's L.T.I.P. benefits commence after a qualification period of six months "from the date the employee becomes totally disabled or the expiration of accumulated sick leave credits, whichever is later." Thus it is perfectly clear that the employee had no right whatever to L.T.I.P. as long as he was enjoying benefits as an employee due to sick leave credits. It was during the effective period of the second agreement (effective from October 1, 1976) that the grievor became entitled to L.T.I.P., and no sooner. On this branch of the case, the Board's conclusion must be that the grievor's claims to L.T.I.P. are governed by the second agreement rather than the first. Having regard to this result, it is not necessary to determine what difference in substance, if any, there may be between the L.T.I.P. provisions of the two agreements. Turning now to the second issue in the case, several questions arise in applying the language of 4.la). It is all one paragraph, but may be broken down and dis- cussed phrase by phrase. (a) "The Long Term Income Protection Benefit is sixty-six and two-thirds percent (66 2/3%) of the em- - 12 - ployee's gross salary at the date of disability..." No tissue has been raised before'this Board as to the Employer's computation of the gross amount payable under L.T.I.P. It will have been noted that the term used is "disability" -- not "total disability". The latter term is defined in 4.lc), and the Employee's condition in November, 1974,did not fit that definition. (b) ",.... including any retroactive salary adjustment to which the employee is entitled..." The Board is assured by the parties that in this case no issue arises in respect of retroactive salary. (c) ‘I... reduced by the total of other dis- ability or retirement benefits payable under any other plan toward which the employer makes a contribution . ..'I As already explained, the Union concedes that the Employer was entitled to deduct $173.53 per month, the amount paid to the grievor under the Canada Pension Plan, a plan to which the Employer contributes. (d) 'I... except for Workmen's Compensation benefits paid for an unrelated disability . ..'I This is where the parties (or their spokesmen) part company. Obviously, the intent of the exception above is to make clear that certain Workmen's Compensation - 13 - benefits are not to be deducted from L.T.I.P. benefits.' There are, however, qualifying words: the words "paid' for an unrelated disability", and that is what appears to be the crux of the issue between the parties. There was some argument about whether the Employer makes any contribution to the W.C.B. plan. In view of the language of the exception, the Board considers that point to be irrelevant. The real question is whether (as the Union contends) the grievor's disability was "unrelated". The Employer's approach to the problem was probably influenced by the assumption that the grievor's total disability is due, at least in part, to the indus- trial accident of 1962. Such an assumption can be founded only on the fact that the W.C.B. granted a 15 percent partial disability pension, later increased to 25 percent. That, however, is not conclusive. To take a clear example, a man may receive a partial disability pension as the resultofanaccident or a war wound, work full-time for the next 30 years -- and then become totally disabled by cancer. On the other hand, an injury or wound may eventually aggravate a latent condition leading to total disability. The whole area is somewhat speculative (containing seeds of medical controversy) which no doubt is the reason the parties have reserved their right to call medical witnesses. , - 14 - That should not be necessary, however, if the correct ' interpretation of the words "unrelated disability" is different from the interpretation advanced by the Em- ployer. The Board heard certain arguments about the difference, if any, between the words "payable" and "paid", the first of which appears in connection with deductible payments and the second within the language of the W.C.B. exception. On the Board's interpretation of the exception, the use of "paid" instead of "payable" does not affect the result. The crucial words are "an unrelated disability". So far as the meaning is concerned, the W.C.B. benefits already received by the grievor were "paid" and those he would continue receiving were "payable" in due course, a refinement which gives no assistance in interpreting the exception as a whole. Counsel for the Employer pointed out that for tax purposes the Income Tax Act recognizes a difference between the date of the disability and the date benefits are received. We are not here, however, to interpret or apply tax legislation, but only to interpret and apply an agreement between two parties affecting the right of the grievor. The Board was also told that it would be dis- criminatory and unfair to other beneficiaries of - 15 - L.T.I.P. if the griever r$ceives more than they do in compensation for total disability. There may be others in the public service who receive, in addition to their salaries, disability benefits from an insurance company or the W.C.B. or as a result of war service. No one has suggested that their salaries should be reduced by the amounts so received, and any suggestion to that effect would be considered absurd. Apart from the somewhat subjective considera- tions which have just been mentioned, the question remains: in its context, what is the meaning of the words "unrelated disability"? In the Board's view, the words plainly refer to a disability wholly'unrelated or unconnected with em- ployment in the Public Service. It does not, in our opinion, depend on the medical explanation for the various ailments or disorders afflicting the griever before and during his employment in the Public Service. Moreover, there could be no reason for making an exception of W.C.B. disability benefits if the exception is to be negaized for the reasons advanced by the Employer in this case. There is no dispute that the W.C.B. pension is being paid by the W.C.B. in respect of an accident suffered by the grievor in 1962 while he was working for Hollinger Nines, an enterprise in the private sector. Even in the - 16 - absence of medical evidence, it is clear that the 1962 accident and the partial disability pension resulting' therefrom, is not related to the griever's employment in the Public Service, which did not commence until 1967. It should be understood that the responsibility of the Board (and indeed what we have been asked to do) is to interpret and apply the language of an agreement as it affects the Employer and a totally disabled employee. On that basis, as indicated above, we have arrived at a determination of the griever's rights under 4.1 of the benefits agreement made in 1977. The result is that in our opinion the Employer is not and has not been entitled to deduct from the grievor's L.T.I.P. benefits any amount corresponding to all or part of the W.C.B. partial dis- ability pension, and he should be reimbursed -accordingly. As already explained, our interpretation and application of the language agreed to by the parties makes it superfluous,in our opinion, to inquire into the medical history of the grievor. However, we do not disregard the fact that the parties, unaware of what our conclusion would be, reserved the right to offer medical evidence. If either party wishes to do so, or to make further re- presentations, we may be spoken to and a further hearing, if deemed necessary, can be arranged. If this is not done within 30 days from the date hereof, this decision - 17 - must be taken as final. DATED at Toronto this 13th day of May, 1981. E. B. Jolliffe, Q.C. Vice Chairman A. G. Stapleton Member E J. Thomson Member