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HomeMy WebLinkAbout1985-0693.Johnson.87-11-18IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Terrance Johnson) - and - .The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: For the Griever: For the Employer: Hearing: I. Springate I.J. Thorn-son. I.J. Cowan Vice Chairman Members Member C. Dassios COUlSel Gowling and Henderson Barristers & Solicitors L. McIntosh COUllSel Crown Law Office Civil Ministry of the Attorney General ,., June 5, 1987 .- AWARD .These proceedings arise out of a dispute between the parties.concerning~ the grievor'~s entitlement to compensating leave with respect to two holidays which he had been scheduled to work, but was unable to do so.because of a work-related injury. At the hearing, the parties filed an agreed statement of facts. Neither party led any additional evidence. The agreed statement of facts reads as follows: .I. .: 2. 3. 4. 5. 6. The Grievor is employed at the Metro East Detention Centre and, at the time of the grievance, was a.correctional officer 2. He has been employed by the Ministry since June 11, 1979. He is an employee within the meaning of the relevant collective agreement. The Grievor was injured~while at work in March of 1985 and as a result was off work and received Worker's Compensation from March 22, 1985 to May 1 of 1985. Had the grievor actually worked during the period for which he was absent due to his injury, his regular.work-days would have included April 5, 1985 (Good Friday) and April 8, 1985 (Easter Monday). The employer allocated 8 .hrs. pay for each of Apr~i& 5 and April 8, 1985 to the grievor. The grievor signed a document at the time he commenced employment stating that he wanted time off instead of cash. The Griever's work schedule at the relevant time.was 5 days/wk., 0 hrs./day. -2- Although not expressly stated in the agreed statement of facts, from the submissions of counsel we gather :- that the grievor had actually been scheduled to work both Good Friday and Easter Monday, 1985. The relevant provisions of the collective agreement provide as follows: ARTICLE 19 - HOLIDAY PAY 19.1 Where an employee works on a holiday included under Article 47 (Holidays),, he shall be paid,~at the rate of two (2) times his basic hourly rate for all hours worked with a minimum credit ~of seven and one-quarter (7-l/4), eight (a), or the number of regularly scheduled hours, as applicable. 19.2 In addition to the payme~nt provided by section 19.1 an employee shall receive either seven and one-quarter (7-l/4) or eight (8) hours as applicable at his basic hourly.rate or compensating leave of seven and one-quarter (7-l/4) or eight (E).hours as applicable, provided the employee opts for compensating leave prior to the holiday. ARTICLE 47.- HOLIDAYS 47.1 An employee'shall be entitled to the following holidays each year: New Years' Day, Good Friday Easter Monday Victoria Day Dominion Day.- Civic Holiday Labour Day Thanksgi~ying Day Remembrance Day Christmas Day Boxing Day - 3 - Any special holiday as proclaimed by the Governor-General or Lieutenant Governor. 53.2 Where an employee is absent by reason of an injury or an industrial disease for which an award is made under The Workmen’s Compensation Act, his salary shall continue to be paid for a period not exceeding three (3) consecutive months for a totalof sixty-five (65) working days where such absences are intermittent, following the date of the first absence because of the injury or industrial disease, and any absence in respect of the injury or industrial disease shall not be charged againsthis credits. The employer contends that Article 19.2 entitled the grievor to eight hourse pay fo,r each of the two holidays, which amount he received, and nothing more. The union contends~ that Article 53.2 guaranteed the grievor his regular salary for the two holidays in addition to his entitlement under Article 19.2. In both’cooper 145/71 (Swan) and Martin 34/04 (Delisle), the Board concluded that an employee scheduled to .~~ ._ work a holiday, but unable to do’so on account of a non work-related injury, was entitled to be paid holiday pay for the day, and nothing more. The scheme of payment for holidays under the collective agreement was also discussed in Parsons 31/78 544/81 (Barton entitlement of Prichard). Subsequently, in Charbonneau .- , the Board for the first time considered the an employee scheduled to work a holiday but - 4 - unable to do so as a result of being off on workers’ compensation. The.Board in that case reached a different result that had the Board in the previous cases dealing with an employee who was ill. In Charbonneau, the Board concluded that an employee off on workers’ compens~ation who had been scheduled to work a holiday was entitled to receive both his regular salary for the day pursuant to Article 53.2, as well as an additional eight hours’ pay, or,compensating time off, pursuant to Article 19.2. The employer applied~for judicial review of the Charbonneau award. The employer relied, in part, on the fact that -the Charbonneau award had~ not followed the reasoning adopted in previous Board awards dealing with~employees who were ill but.not on workers’ compensation. The Divisional Court declined to grant the application for judicial review, reasoning that the award in’charbonneau was not patently , unreasonable. On July 4, 1985, the Court endorsed hits record -’ as follows: We express no opinion on the correctness of the interpretation of articles 19 and 53 of the agreement given by the majority of the board of arbitration. We simply say that, in the light of what we were told was a different argument made before the Board, we see no necessity in this case, to resolve the apparent controversy among arbitrators. Despite an extremely persuasive argument by MS. McIntosh on behalf of the employer, we are not convinced that the interpretation . , ,. :’ ,. - 5 - found in the major unreasonable. ity award is patently The holiday pay entitlement of eight employees on workers' compensation'also came before the Board in Walberq et al. 259/84 (Delisle). The Board in that case concluded that it should follow the reasoning in Charbonneau. The employer has, however, filed an application for judicial review of the Walberq award, contending that the Boards erred -.:. with respect,to certain procedural matters. .The issue of the holiday entitlement of an employee on workers' compensation next came before a panel of the Board in McDermid 366/83 (Springate). After a review of t~he relevant agreement provisions and the jurisprudence referred to above, the Board reached the conclusion that there were several.different, yet reasonable, ways to assess the entitlement of employees scheduled to work a holiday, but unable to do so. The Board then went on to comment as follows: The difficulty we face. is deciding which line of reasoning to follow. As already indicated; given the language of the collective agreement, we do not view any of the possible approaches set out above as unreasonable. In addition, we cannot accept the employer's contention that the majority award in Charbonneau was manifestly wrong. While the reasoning adopted by the majority in that case did not follow the reasoning in previous Board cases dealing with employees off work due to illness, that by itself is not a sufficient basis to conclude that it ., 1. -6- was manifestly wrong. Indeed, given the lack of clarity in the collective agreement, we do not view any of the possible approaches set out above as being manifestly wrong. This is one of those cases where arbitrators could give the~same agreement language different, yet reasonable interpretations. We are of the view, however, that where reasonably possible the Board should strive for consistency when dealing with a particular issue. To do otherwise would mean that the outcome of any particular grievance on an issue might depend on the composition of the Board panel assigned to hear the case. In Charbonneau, the Board dealt with the very issue now before us, namely the holiday entitlement of an employee scheduled to work a holiday but unable to do so because of a comnensable iniurv. The maioritv award in Chaibonneau was jidicially ;evie;ed by the Divisional Court, which declined to quash it. In the interests of a uniform approach to the issue, we propose to apply the reasoning in the majority ins Charbonneau to the grievance before us. In doing so, we express no opinion as to whether the reasoning in Charbonneau should be applied to employees’ who are off work due to a non-compensable illness. In the interests .of a consistent interpretation :. of the collective agreement, we are sa~tisfied that in the instant case we likewise should follow.the reasoning in the Charbonneau award. Accordi.ngly, we find that the grievor was entitled to be ‘paid his regular salary for both Good Friday and Easter Monday. Be was also entitled to an additional eight hours’ pay or compensating~leave under Article 19.2. The grievor was only paid.for eight hours on each of the z.days . As for his remaining entitlement, the grievor, as he was entitled to .do, had previously opted for compensating leave instead of a cash payment. In the result, the employer ~ . ,., C’,, : -7- is directed to credit the qrievor with two days’ compensating leave. The Board will remain seized of this matter in the event the parties experience any difficulty in implementing this award. DATED at HiSSiSSaUga, this 18th day of November, 1987. c LLzcga$T- I. Springate, Vice-Chairman Thomson,: Member "I dissent" (Dissent attached) DISSENT I have read with interest the majority award in this case and in view of the Charbonneau decision and the court’s endorsation thereof can appreciate the desire for a consistent interpretation of the collective agreement. Nevertheless, it is my view that the Charbonneau decision and others give.ty Art. 19.1 a meaning it cannot reasonably bear. The Article states that “where an employee works on a holiday included under Article 47 (Holidays) - he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked with a minimum credie’ of seven and one-quartet (7-l/4), eight (a), or the number of regularly scheduled hours, as applicable.” The issue in Charbonneau as well as the instant case is that the employee claiming benefit under Art. 19.1 did not work on a holiday. 1,believe that the previous decisions expand the contract, an action snot ‘within~ the jurisdiction of a panel of this Board. While the court found the Board’s decision in Charbonneau to be not unreasonable it expressed no opinion on the correctness of the interpretation of Articles 19 and 53 of the agre’ement given by the majority. For these reasons I would have dismissed the grievance. ~. “I. J. Cowan”’ I. J. Cowan