HomeMy WebLinkAbout1980-0263.Union.81-05-07 GROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
BOARD
180 DUNDAS STREET WEST, TORONTO. ONTARIO. M5G 1Z8-SU1TE 2100 TELEPHONE! 4161598-0688
263/8}
IN THE :}LATTER OF AN ARBITRATIOti
Under The
CROWN EMPLOYEES COLLECTIVE BARGIAINI'vG ACT
Before
THE GRIEVANCE SETTLEMENT DOA RD
Between : Ontario Public Service Employees
Union
- And -
The Crown in Right of Ontario
( Civil Service +_cimmission)
Before : Prof . P . G. Barton Vice Chairman
Mr . F. Coilict Member
Pr6f . F . Collom Member
For the Grievor : Mr. G. Richards , Grievance Officer
Ontario Public Service Employees
Union
For the Employer : k1r . W. Gorchinsky
Staff Relations Division
Civil Service Commission
Hearing: January 6-�Ih , 1981
i
On _',Iarc!,. 23 , 1-979 ) a memo ran aam
"Irs 4 Foden at -Ene Miniszry o-f Transoorta-_ icr. an,4
from T . J . Cowan .. Director of Personnel . hfs merno-
indicated zhas the Irnplovef_- Data Services Brancn of i 7 E7,-..-
.L^ Government Services had .-evie�ved "E"a�-e
o the Benefi-�.s Credit
Ms . Foden and because she had been absent wizhour- oar' fo-- 236
calendar days , it was aiter�-'..ng *ner Benefits Gredi-, fr-=
24 , 191;58 to Oc7-ober 19 , 1958 . The cnar�e -,,-as stated -.-o
tine calcula�ion of vacation credits and severanc�
On November 16 , 1-979 a policy Grievance was fill -ed
by c,allegin a, violation of Article 2-3 o_ 7,C
f
Conditions Agreement and asking for a re-adjustment of --he
Credit Daze of '!Is . Loden .
A.I -r_Iiouch the --rievanca related to vacation credits and
severance oa7 , the Beneflits Credit Daze of an employee JLS a
significant d'a ze , being used in calculation off entitlements
other benefits as well Perhaps -he mosz obvious use of --h-e -darle .
o-her than its use to calculate severance and vacation
4-5 in the area of Pensions .
The Benefits C.-edit Date 4LS ihe same as the hire date
when the employee star ts , %:orking. Subsecuenzly r-ne hire daze
remains z1he same but the Bene_--_' 7_s Credit Date may C1--an-�e to a
later date . The way in which this occurs is th• -. if an emplcvee ' s
continuous service is interru-c-.ed in various ways , :*-)a-- -_)eriod
of in ter ru-ozion may not be credi-,ed t,o e emlo_ogee as 2a7 3- 1-f
Z'I%- no rediz -is �-- ven -' ,D e
service to z.-,e government . Accordinc-
employee fCr this time s p e n aw a y f r o 7, time -0 a-d e C I e C
of service is reduced , moving - he Ben.ef i's rredw. Da:s f c�r-.1:a r rf
a more recent date than the :iir e daze ,
There are a number of reasons '•vhzi a r erscn , S
service with the government may be inzerrunted. These include :
1 . Leave of absence ;vith pay ;
. Leave of absence wizhouz pay _'or lxo to 30 days ,
-3 . Leave of absence v izhout nay for More zha n 0-0 da.:s ;
4 , Lay o ;
5 . Resignation and subsequent re-hiring ;
6 . :absence because of i11ness .
`,cost of 'these absences -from the ,god are dealt with by specific
clauses in the relevant Agreemen or by leaisla-�ive provisions .
?rant/ of therOOlemS raised by Counsel for the g{ieyor in 15
usually exhaustive ar71.u*nen t can be answered by a reference zo
these nrovisions .
The memorandum concerning changes in the Benefits
Credit Date , :=rhich was received by Mrs . Foden and :Yhich forms
the oasis of the grievance indicated that the Bene-its Credit
Date would be adjusted to show a later date whenever an emnlovee
was absent for the fcllowing reasons ,.
i�; any leave of absence without pay for yore -L,,
30 days (N. B . - the only. leave without nay- of over
zhirty days which does not require correction oz
the Benefits Credit Date is Maternity leave ) ;
2 periods .os absence a-fter resignazion for education--1-
or oolizical 'ournoses -where "einslavemen: �roC'iSi� :S
exist .
I
4 -
s 3 . Periods of .lay off ;
1
4 4 . Periods when an employee is recei .'in7 f
benefits .
In the case of the arievor the 236 calendar days which were not
counted as continuous service were days when she was sick , no-.,
covered by zhe hen existing sick plan , and was gran zed a ..ea".
of absence without pay.
We have chosen to deal with the easier auescions first .
1 . Periods of Lay ors
It was agreed at the hearing hat the effocz o=
Article `5 . 2 is to deal expressly" with this situation and according!7
the grievance is dismissed.
2 . Periods of absence after resignation for educational
or bolitical purposes ',there reinstatement ti'o:'i=i nq
exist
By virtue of s . 17( 1)b of C. . C. B . A . management rights
include the right to determine "merit system, training and develop-
ment There are no specific provisions in the Agreement pro-
viding for resignations for educational purposes and subseCtue^
reinstatement .
Regulation 749 under the Public Service Aw deals in
ss . 36-39 with educational absences . By s . 38 a civil servant may
resign to attend a course and the deputy minister of nhe relevan
ministry may direct the continuation of certain attendance and
vacation credits until re-employment or four rears have passed.
3v virtue of s . 39(2 ) , for the purposes of the Act and t'nc
regulat ions absence for a period not aNceeding four years
in respect of which a direction has been made under sect =ion 33
shall not be computed in determining the length of his service
and the service before and after the absence shall be deemed to :,e
continuous" .
The seniority clause Article 25 provides in }r „;c_e
25 . 3( a) that continuous service shall be deemed to have terminated
if an employee resigns .
It seems to us that if a person resigns for educational
purposes , and is subsequently reinstated ,the time spent a=.:a;- from
the job is clearly not to be counted toward continuous service .
Where a s. 38 direction was made and re--Hiring obviously contemplated ,
s . 39a(2) expressly deals with the problem. 'there an employee
resigns to continue his or her education without such a direction ,
and takes a chance on being re-hired , the situation is outside the
scope of the grievance but seems equally to be one in which time
spent should not count toward continuous service .
Resignations for political purposes are covered in part '
by s. 12 of the Public Service Act . This section deals only with
leaves or resignation to run for or to occupy provincial or federal
political offices . Basically an employee can take a leave to
campaign and if elected must resign . Within certain specified
tunes he or she can be re-appointed to a position as a Crown _mplcyee .
The situation of a person running for municipal or ot-.er
political office is not expressly dealt with. By section 1_ . as
recently considered in the mat ter of Bruce McKay =265 r SO . a ;erscn
may lose his or her posit ion as an ennio; ee _ertai � e-. _: ;s
occur such as an interference :vit'n his or her employment u'L::i-s ,
There is , however . no specific provision allowing for resi na_-on
and reinstatement-.of municipal politicians and accordi_n�l.,-
the problem zs ,not within the scope of the crrievance , Ls an asi,�e
%ve -eel that Ar-icle 25 . 3( a) would probabiv cover -ne Si _ ua-ion
in any event .
With respect to resignation and reinstatement of
provincial or federal politicians , s . 12( 5 ) ex-oressly deals with
the problem of continous service , It indicates t^e period
of the leave of absence or resignation shall not be computed 7n
determining the length of his service for anp purpose
This clearly precludes counting time so spent as part of 1:he
continuous service .
3 . Anv leave of absence :vithout nay for more than
30 days . (except Maternity Leave )
It will be remembered that the grievance relates to
the calculation of vacation credits and severance oa:-.
The problem of severance pay is expressly covered by
:article 1L1 . 7 of the Benefits Agreement (now consolidaved W' the
Working Conditions Agreement ) . It provides .hat :
"An employee is not entitled to severance
pay in respect of a period (a) where he is
on leave of absence -, ithout pay Tor a period
which constitutes a hiatus in his service , i . e . :
1 ) Political Activity (PSA 1 21 . 5 )
2 ) Lay off (Article 24 tiC )
3) Educational Leave (Reg. 39a( 2) )
b ) when he is receiving benefits under -: e Lon`
Term Income Protection Plan , "
Clearly this r icle express'-- ce`:?rs _ le proo lem of . alc,_,-a` _
of continuous service for the purposes off severance -)ay _...�--
and provides that a leave of absence :9•i:bout na-T for :ore 7:a v9
trays is not counted as Lime in service.
The situation of leaves of absence without pay for -ore
than 30 days , and whether this time is used in th-e calc"_ation of
continuous service for the ` urlOOSe 01, Various `:7a.ca7 '_O
is more complex.
- Article 25 of the ;1orkin, -Conditilons Ajreement does ^o=
deal with this problem.
Article 8 of the Benefits, Ac"reement provides for the
ea.rnin- of vacation credits at a. certain rate . It also orovides
in Article 8 . 8 for an additional five da,,7s of vacation at _-tae end
of twenty-five years of continuous service., and in krticle 8. 9 for
certain pre-retirement leave after the same period. Article 8 . 3
provides that :
"An employee is not eati fled to v aca.t ion credi i s
under article 8 . 1 in respect of a whole mont -
in which he is absent from duty. for any reason
other than vacation leave of absence or leave
of absence with pay
There is., however, no express reference in this Article to the effect 0-
a leave Without pav of over 30 days on the vacation entitl .e.,en:s
in yrt isles $ . 8 or 8 , 9, to name two . There is no provision co npars'c-,e
to Artie-le 14. 7 in the severance pay Article ,
The position of the Lnion was teat because Jiz is nct
expressly excluded , such lime spent must be -ak�en into acc:un_ �..
calculating continuous service for tae purUoses of rasa- ion
_ g -
in .those parts of article 3 other than `--title o . 1 .
Leaves of absence w 1holit pay are scecif_......_ �Ea� _ ---
by Article 29 of the Working Condit ions aareemen-_ . it provides
"Leave-of-absence .without pay and without the
accumulation of credits may be ',granted zo an
employee by his Deputy Minister. -
although .his does not specif.ca ll7 --e---. t0 � e
problem of calculating conzinuous service -or the purposes 07
vacation entitlements , it does reflect a policy that when a
person is on a leave without pay , he or she is not furthering t o
interests of the employer and not there-ore entitled -�,o credits
that would be earned while emiz)1oved. It seems consistent wit
this policy to say, that leave wit?^iout pay .or over 30 days should
not count. as part of continuous service for the purposes of v caz iJn
entitlement .
Certain specific situations of leave without Day for
over 30 days are , of course , dealt with elsewhere in the Agreement
or in legislation and regulations . Leave of absence for federal
'or provincial political candidacy- is expressly dealt _4th b
P. S. A. set out in part , above . Leave of absence without pay for
educational purposes is considered in s . 37(2 ) of Regulation 749and
is expressly stated to be "withoitoav or the accumulation of credits" .
So also s . 39a(2 ) expressly discounts the calculation of this tJ e
as part of continuous ser-vice .
Perhaps it would have been better to include a ecific.
article like Article 14 . 7 on the vacations clause , but despite f s
absence we see a clear policy on the rest of the agree^:ent -na:
time spent on lea=,re without pay , over 30 da.Is is got _o cci�n=
as part of continuous service . '.;'e MiVhr add than- -.ve con-
cerned with the administrative problems —)az cou''a arise -- a__
employee had different Benefit Credit Dates for various be'_?efA_s ,
? . Periods when an employee is receiving L. T . Y ?
As mentioned earlier , the problem of ,an employee -on L c^;
Ter.- inccme Protection benef i 7 s as far as severance pay
is covered by article 14 . 7 and such time is expressly excluded _row
service . The only issue to be faced here is whether vacat-ion
entitlement,s such as those in articles S . S , or 8 . 9 are to be cal cu-at_d
by taking into account time spent on L. T. I . P. Because a period
up to six months is covered by a Short Ter- Sickness ?Tan (article
13) , these periods of time :mav be considerable .
Tile. relevant. Harts of Ali l.icie J have been referred to
earlier. article 8 . 3 indicates that an employee absent from duty
for reasons other than vacation leave or leave with pay is not
entitled to accumulate vacation credits under article 5 . 1 . T11 at
:article provides for a certain number of days of vacation for a
certain period of continuous service. It is common ground that
because Mrs. Foden was absent without pad- she was not earning
vacation credits under article 3 . 1
The more difticu t question is whether she was zo be
considered as "in service" for the purposes of articles 3 . 3 or 3 . 9 .
to name taco. a finding that she was Xould entitle her _o ce--_ain
extra vacation ( article S . 8 )
10 -
It is necessary to distinguish her situation from the
situation of persons on the L.T. I .P . (Article 4) . Under that
Article a person is entitled to L.T. I .P , benefits of 66 2/3 o
of gross salary if totally disabled as defined in Article 4 .2(2) .
The benefits are . reduced to some extent by other benefits received
by the employee .
By virtue of Article 4 . 3 health insurance premiums are
paid by the employer . The L.T.i .P , continues until the employee
recovers, dies, or reaches 65 years of age .
• If an employee remains disabled until 65 it is difficult
to see how a continuous service problem could arise since the
employee would not be eligible for vacations in any event .
If the employee on L.T. I .P . recovers, he or she can
receive partial benefits while in Rehabilitative Employment for up
to 24 months. By Article 4 .9 such an employee "will earn vacation
credits as set out in Article 8" . This seems wide enough on its
face to cover credits under Article 8 .1 and other parts of Article
8 . Thus while an employee is on Rehabilitative employment it
follows that the time so spent is spent as part of continuous
employment .
To return to the problem of an employee on L.T. I .P .
and not on Rehabilitative Employment , what happens if the employee
recovers fully and goes back to work full time? Dealing with the
problem of time spent on illness or on disability, Professor Palmer
in his recent book Collective Agreement Arbitration in Canada
at P . 531 Suggested:
..more recent!,7 the ::yards have hold chat ,
that , unless the collective agreement
clearly provides otherwise , - this time is
included in continuous ser7ice or employment . ''
Additionally our Chairrnan Weatherill stated on re 317et press
LAC (2d) 762 , :
if company arguments in this case were to
succeed it would have the effect of reducing
Oat entitlement to some degree by reasb
of the fact of the grievor ' s . involilntary
absence throughout a substantial part of the
vacat ion y ear . "O
We are drawn to the conclusion that while an employee
is on L .T. I , P . that time does count as part of continuous service
for the purpose of calculations of entitlement under those parts
of :article S other than `Article 8 . 1 . As we indicated we see no
practical problems arising unless the employee recovers fully ,
which is unlikely in most of these cases .
The problem of firs . Fcden remains to be considered.
She was not -on L. T. I . P. but was absent on a leave without ;a7.
Was she "in service" for the purpose of those parts of Article 3 -
other than :article 3 . 1? The only relevant part of zhe Agreement
we can find is article 29 , referred to earlier . The view we
expressed earlier , that such an employee is not fumhering the
interests of the employer, seems less compelling where the enployee
is absent through no fault of his or her own . despite this , however .
the phrase - • ithout accumulation of credits- is fairly precise
and to be consistent we :fold that she was absent on n leave
12
7 lioizt pay and not earn ins -c-!'le owa-rd con
Should a similar situation arise now , she would covere-d
under some fo= of disabil-ir---7 co�rerage , a nd -,, jews
have expressed concerning L ,7- . I-. P would oi,
e v a
In summary her grievance is distmissed. '['he polic-
.7rievance of the Union is all-cived in ia.--.- .. insofar as
benefits recipients are concerned and to the exzenz
Xe cannot close without indicazino, our dissatisfaction
with the position which we have been required to -1-ny
A-reement• which has different :methods of calcul3-C4 -1- conzinuous
czerv4de for -he pT-Trnose of diffe-rent bene Z4 -S is bound to be
hard to administer. Perhaps the parties would consider in=oducinz
a clause 1J.-ke Article 14. 7 into Article 8 to cover those few
emDlovees who ,nav benef it, from this A,,�rard,
DATED AT London , Ontario
this 7-L11i day Of M-a 7 1981 ' � ' \
Peter Narrton
Vice-Chairman
1 , concur/d1sS-e!---
Col-lict
emb e r
C o 110 M
ember
1 am in agreement with the majority award, win . the . .s__.wi ,
comments ccncerning u.^. 1 . ?. .
Basically, tale minority position i s Act in dispute with he
reference at page 10 of the award from, Professor professor Palmer ' s
book, Collective Agreement Arbitration in Canada (p. 5511 ,
concerning conti nucus service credits .
Regardless or the absence of clear language in the Agreement
concerning continuous service credits while on L.T. I .? . , hcw
ever , specific silence in the Agreement concerning service
credits while on L.T. T .?. , plus past practice , plus the clear
language of Article 4. 9 ins'`she agreement are significant.
Apparently the parties have deemed it necessary to provide for
Article 4 . 9 , as follows -
"Employees while on rehabilitative employment
with the Ontario Government will earn vacaticn
credits as set cut in Article S . "
1,ocically it may be argued that credits for continuous service
were not accorded to an employee while an L. T . p. but that _
Article 4 . 9 was introduced to ensure that credits for cs tin-
uous service would be received as soon as the employee returned
to rehabilitative employment.
Conversely, it is illogical that credits for continuous service
were accorded to an employee while on T T. E . D. that they were
denied to him when he returned to work for rehabilitative emplcv-
ment, and that Article 4. 9 had to be introduced to correct this
seeming inequity.
Accordingly, the consistent practice ;cllcwed by Yan acemen.. _..
the calculation of continuous service dates fc, the deter-—„
aticn cf benefits entitlement , plus the languaTe of tte gree-
men>r would i nd icate that a employees � n L.T. _ . have not been
receiving credit rcwarus canti- cz:s ser- _ce :ait'; -gip Gc'r=r__-
meat azid that the Union 'nas peen fully aware Of this
• i. r01?1C� ,
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