HomeMy WebLinkAbout1985-0050.Union.86-01-08IN THE MATTER OF AN ARBITRATION
Under
THE CROVN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Union Grievance)
and
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Before:
For the Grievor:
For the Employer:
Heariw
G . Brent Vice-Chairman
S. Dunkley Member
W. A. Lobraico Member
C.G. Paliare Counsel
Cowling & Henderson
Barristers & Solicitors
8. Atkinson
Courrsel
Hicks Morley Hamilton Stewart Storie
Barristers & Solicitors
November 12, 1985
Grievor
Employer
DECISION
The matter before the board arises out of a grievance (Ex. 1) which
alleges that the Employer "at the Rideau Regimal Centre uses a 'benefit
credit date' in a manner which is improper, det+imental, and contrary to
the rights of employees which are established by The Collective
Agreement': There were no preliminary objections raised concerning the
jurisdiction of the board to hear and determine the matter.
The sole issue placed before us is whether the Employer is
justified in deducting periods of absence from work while an employee is
on Long Term Income Protection benefits (hereinafter referred to as
LTIP) from the employee's "continuous service" for the purpose of
calculating vacation entitlement under the collective agreement The
term "benefit credit date" as referred to in the grievance is not found
in the collective agreement; it is a term created by the Employer to
account for any interruptions in the employee's service which it takes
into account when calculating vacation and severance pay credits (see
Exhibit 4). The Employer does deduct from "continuous service" the
period of time during which an employee is on LTIP benefits for the
purpose of calculating vacation entitlements, and the sole question
c
before us is whether such a practice violates the collective agreement.
The relevant portions of the collective agreement are set out
ARTICLEZ~- sm10RITY uaNGTEoPawrIuuolJs SERVICE)
25.1
in employee's length of continuous service will
accumulate upon completion of a probationary
period of not more than one (1) year and shall
co-nce from:
(al the date of appointment to the Classified
Service for those employees with no prior
service in the htario Public Service; or
(b) the date on which an employee commences a
period of unbroken, full-time service in the
public service, immediately prior to
appointment to the Classified Service.
"Unbroken service" is' that which is not
interrupted by separation from the public
service; and "full-time" is crmtinuous employment
as set out in the hours of work schedules for the
appropriate classificaticns.
25.2 Where an employee has been released in accordance
with Article 24 (Job Security) and rehired within
two (2) years, the period of absence shall not be
computed in determining the length of cmtinuous
service. Howeve~r, periods of continuous service
before and after such absences shall be
considered continuous and are included in
determining the length of continuous service.
.25.3 Continuous service shall be deemed to have
terminated if:
(a) an employee resiqs or retires: or
/ (b) an employee is dismissed unless such
~dismissal is reversed through the grievance
procedure; or
(c) an employee is absent without leave in excess
of ten (10) consecutive working days; or
(d) an employee is released in accordance with
Article 24 (Job Security) and remains
released for more than two (2) years.
ARTICLE41 -LONGTERMINCC4BPlW!lXCTICBl
. . . . . . . . . .
41.7
If an employee who is in receipt of L.T.I.P.
benefits is resuming employment on a gradual
basis during recovery, partial benefits shall be
continued during rehabilitative employment.
'Rehabilitative employment" means remunerative
employment while not yet fully recovered,
following directly after the period of total
disability for which benefits were received.
When considering rehabilitative employment
benefits, L.T.I.P. will take into account the
employee's training, education and experience.
The rehabilitative benefit will be the monthly
L.T.I.P. benefit less fifty percent (50%) of
rehabilitative employment earnings. The benefit
will continue during the rehabilitative.
employment period up to but not more than twenty-
four (24) months. Rehabilitative employment may
be with the Employer or with another employer.
. . . . . . . . . .
41.9
Employees while on rehabilitative employment with
the Ontario Government will earn vacation credits
as set out in Article 46 (Vacations and Vacaticn
Credits).
. . ...*....
4
M?CICLE~~- VACATIONS AND VACATION CREDITS
46.1
46.2
46.3
46.8
46.9
Effective January 1, 1982, an employee shall earn
vacation credits at the following rates:
(a) One and one-quarter (l-1/4) days per month
during the first ten (10) years of continuous
service;
(b) one and two-thirds (l-2/3) days per month
after ten (iD) years of continuous service;
(c) Two and one-twelfth (2-l/12) days per month
after eighteen (18) years of continuous
service.
An employee is entitled to vacation credits under
section 46.1 in respect of a month or part
thereof in which he is at work or on leave with
Pay.
AII emploYee isnotentitledto vacation credits
under section 46.1 in respect of a whole month in
which he is absent from duty for any reason other
than vacation leave-of-absence'or leave-of-
absence with pay.
.I........
where an employee has completed twenty-five (25)
years of continuous service, there shall be
added, on that occasion only, five (5) days of
vacation to his accumulated vacation entitlement.
An employee who completes twenty-five (25) years
of continuous service on or before the last day
of the month in which he attains sixty-four ~(64)
years of age is entitled to receive five (5) days
of pre-retirement leave with pay in the year
ending with the end of the month in which he
attains the age of sixty-five (65) years.
. . . . . . . . . .
ARTICLE52- TERKXNATIopll PAYNESTS
. . . . . . . . . .
52.7 For purposes of determintng qualification for
severance pay and the amount of severance pay to
which an employee is entitled, an employee's
continuous service shall not include any period:
. . . . . . . . . .
(b) wha he is receiving benefits under the Long
Term Inconk? Protection Plan;
. . . . . . . . . .
Counsel for the partie* also referred us to the following cases:
r
i
’ ,
5
OPSEU and The Crown in Right of Ontario (Civil Service COmmission) GSB
File #263/80; & Canadian Union of Public Employees, Local 43, and
Municipalityf Metropolitan Toronto (19721, 24 LAC 318 (Weiler); andE
Andres wines (B.C.) Ltd. and united Brewery and Distillery workers, ---- -
Local 300 (1977), 16 LAC (2d) 422 (B.C.L.R.B., Weiler). --
We have considered with care the collective agreement, the
submissims made by counsel for the parties, and the cases cited to US
in reaching our conclusion.. Article 46 deals with vacations and
vacation credits. When Articles 46.1, 46.2, and 46.3 are considered, it
is clear that the parties agreed that employees would earn vacation
credits only for those months during which they were actually at work or
on leave with p'~y. Article 46.1 sets out the rate at which the credits
would be earned, and Articles 46.2 and 46.3 determine the months for
which that rate would be earned. Only Article 46.1 speaks of
"continuous service". Article 46 does not define "ccmtinuous service"
nor does it specify, as in Article 52.7 for example, how "continuous
service" should be calculated for a given purpose.
'%cmttiuous service" is a term which the parties defined in Article
25.
In that article they specified one hiatus in "ccatinuous service"
calculation, and they also specified what constitutes the termination of
'hmtinuous service". Article 25 does not menticn either vacatims or
LTIP.
Article 41 sets out the provisions which relate to LTIP benefits.
That article is silent about "continuous service" calculation. The anly
specific reference to vacations is in Article 41.9.
We consider that the reasonable andlogicalway to interpret the
term "continuous service" throughout the collective agreement is to
interpet it in a manner which is consistent with the definition which
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the parties themselves agreed to in Article 25. In so doing we would
have to take care to determine whether the parties agreed upon a
specific exception to the normal definition (as in Article 52.7), or
whether the agreed definition would lead to an absurd and inconsistent
result.
As mentioned earlier, we agree that the parties have constructed a
provision in Article 46 where vacations are earned benefits. Generally
speaking, an employee must be actively at work in order to earn vacaticn
credits (see Articles 46.2 and 46.3). Article 46.1 doesnot deal with
ths process by which an employee earns vacation credits; it deals with
the rate at which those credits are earned. Article 46.1 does not
specify that an employee mu6t be actively at work or on leave with pay
in order to qualify for a particular rate; it speaks only of "continuous
service". 'continuous service", as defined in Article 25, is dependent
upon the individual's continuing employment status. There is no mention
in Article 41 of any circumstance which would.interrupt "continuous
service". It is therefore our conclusion that, given the clear wording
of Articles46.1, 46.2 and46.3, an employee on LTIP, whose "continuous
service'hasnotbeen terminated or broken as provided for in Article
25, continues to qualify for the appropriate increases in rates under
Article 46.1, even though not actively at work.
Naturally, given Articles 46.2 and46.3, even though the employee
on LTIP continues toqualify for increases in rates based on years of
being an employee, the employee on LTIP has no manths of work to which
to apply those rates in order to earn vacation credits. The employee on
LTIP will have no months of work to which to apply the rates until
he/she leaves LTIP and returns to work. We consider that Article 41.9
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merely allows the employee on the LTIP rehabilitative programme to earn
credits even though he/she may still be considered to be disabled.
In our view this interpretation is consistent with the concept of
vacations as earned benefits and is also consistent with the
interpretation given Articles 46.8 and46.9 in OPSEU and The Crown in -- ---
Right of Ontario (civil Ser&e Commissicn) GSB File #263/80. we see no
basis for cacluding that the parties intended to exclude employees (II
LTIP from the group of employees who would meet the requirements for
increasing the rate at which they couldearn vacation credits - even
though they couldnot actually earn credits at that rate until they
returned to work.
We consider that had the parties wished to consider LTIP as being a
hiatus in "continuous service" for the purpose of Article 46.1 they
would have so specified, just as they did in the case of severance pay
(Article 52.7).
For all the reasons set out above, we conclude that for the purpose
of Article 46.1 "continuous service" is not broken by any period of time
spent on LTIP and we so declare. We further order the Employer to
rectify employee vacation records in accordance with this ruling. By
agreement of the parties, we will remain seized of the matter in the
event that parties cannot agree on the relief to be'granted in relation
to any individual.
DATED AT LONDON, ONTARIO THIS 8th DAY OF 'January, ~‘Y&&
G. Brent, Vice Chairman
W. A. Lobraico, Member