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HomeMy WebLinkAbout1986-0042.Pavlovski.88-08-15SETTLEMENT BOARD 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G SUITE 2100 TELEPHONE: 0042/86 IN THE MATTER OF ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Walter Pavlovski) G e v o r and The Crown in Right of Ontario (Ministry of Services) Employer I. Springate S. Hennessy . M. Vice-Chairman Member Member For the Grievor: R.R. Wells Counse 1 Gowling and Henderson Barristers and Solicitors For the Employer: J.F. Benedict Manager, Staff Relations & Compensation Ministry of Correctional Services Hearing : October 1, 1987 r -1- DECI SlCON The grievor is a correctional officer employed at the Mimico Correctional Centre. He was scheduled to work November 11, 1985, which was Remembrance Day. He was, however, ill that day and thus unable to work. In accordance with what had been its practice for at least 25 years, the employer paid the grievor on the basis that he had taken the holiday. The grievor claims that he was also entitled to receive sick pay for the day. The relevant provisions of the collective agreement provide as follows: 19.1 Where an employee works on a holiday included under Article 48 (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 1/4), eight (8), or the number of regularly scheduled hours, as applicable. 19.2 48.1 In addition to the payment provided by section 19.1 an employee shall receive either seven and one-quarter (7 1/4) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday. An employee shall be entitled to the following holidays each year: New Year's Day Easter Monday Dominion Day Labour Day Remembrance Day Boxing Day Good Friday Victoria Day Civic Holiday Thanksgiving Day Christmas Day -2- Any special holiday as proclaimed by the Governor-General or lieutenant Governor. 0.0 52.1 An employee who is unable to attend to his duties due to sickness or injury is entitled to leave- of-absence with pay as follows: (i) with regular salary for the first six (6) (ii ) with seventy-f ive percent (75%) of regular working days of absence. salary for an additional one hundred and twenty-four (124) working days of absence in each calendar year. Also referred to by the parties in their submissions was Article 54.2, which states: 54.2 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 total of 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 against his credits. Board jurisprudence regards Article 19.2 as being applicable both to employees who work and those who do not work a holiday. Both parties adopted this interpretation at the hearing. Article 19.2 states that an employee is to receive 8 hours holiday pay, or, in the alternative, compensating leave provided he has opted for the leave prior to the holiday. The grievor opted for compensating leave with respect to the holiday in question, but nevertheless was paid by the employer. The union does not now seek to "unwind" this payment. The union does, however, contend that the grievor should also have received -3- sick pay under Article 52. In that the grievor had already been off ill in excess of six working days in 1985, his claim is for an additional 75 percent of a day's pay. One of the earliest awards to deal with an employee unable to work a holiday as scheduled due to illness was Cooper 145/77 (Swan). In that case an employee scheduled to work a statutory holiday reported for work, but two and three-quarter hours into his shift became ill and left. The employer paid him one and half times his regular salary for the two and three-quarter hours worked pursuant to the then wording of Article 19.1, plus eight hours holiday pay under' Article 19.2. The employee claimed an entitlement to a full eight hours at one and one-half times The Board disagreed, reasoning employee is actually available the Board commented: his regular salary under Article 19.1. that Article 19.1 applies only if an to work. In reaching this conclusion In the case of illness on a holiday, an employee under this agreement simply receives holiday pay, and that is how Mr. Cooper was treated once he left work. In Parsons 81/78 (Prichard), the Board dealt with the situation of an employee who worked a holiday. The employer paid him for eight hours at time and a half pursuant Article 19.1, as well as for eight hours under Article 19.2. The employee claimed yet an additional eight hours pay under what is now Article 48.1. This is the provision which lists the various holidays that employees are entitled to -4- receive. The contention of the union in Parsons was that Article 48.1 creates a general entitlement to be paid for a holiday whether worked or not, and Articles 19.1 and 19.2 set out the additional amounts that an employee who works a holiday is entitled to receive. The Board disagreed, concluding that Article 19.2 sets out the amount payable to all employees for a holiday, whether worked or not, while Article 19.1 provides for an additional amount for employees holiday. In reaching this determination the Board as follows: who actually work a described Article 19 In our view, the better interpretation of Article 19 is that it is a relatively comprehensive code of entitlement to holiday pay dealing with both persons who are required to work and those not required to work on statutory holidays. The case of Martin was scheduled to work a suffered a heart attack. pursuant to Article 19.2 . 434/81 (Delisle) dealt with an employee who holiday but did not do so because he had The employer paid the employee holiday pay The employee claimed an additional eight hours pay at one and a half times his regular rate under Article 19.1. In support of his claim, the union relied on Article 52, contending that its purpose to give an employee his "regular salary", which in this case, it contended, what the amount he would have received had he worked the holiday. The Board disagreed, reasoning that Article 19.1 is triggered by the actual performance of work, and since the employee had not worked on the day in question, only Article 19.2 applied. As an alternative basis for dismissing the grievance, The Board- concluded that the employee's claim ran counter to a prohibition in Article 21 against pyramiding premium payments or compensating leave. -5- The next relevant case was Charbonneau 544/81 (Barton ). That case dealt with an employee who was scheduled to work two holidays but did not do so on account of his being off work on workers' compensation. He was paid eight hours' pay for both days pursuant to Article 19.2. The Board concluded that he was also entitled to receive eight hours' pay under Article 54. The final paragraph of the award reads as follows: On balance although the matter is not totally clear, the resolution of the problem is as follows: 1. 2. 30 4; 5. Article 21 does not apply. Article 19 . 1 does not apply because -the Grievor did not work on the day in question. The Grievor is entitled to his regular salary under Article 53 (now Article 54). The Grievor is entitled to 8 hours' pay or a lieu day under 19.2. I might add that were it not that Vice-chairman Pritchard and Delisle seem to accept Article 19.2 as standing apart from Article 19.1, I would not have so found. Because the Grievor indicated in advance that he wished the lieu days, he is entitled to those days and the grievance is allowed, the Employer being directed to grant him those days . The employer applied for judicial review of the Charbonneau award. Before the Divisional Court, the employer took a somewhat different position than it had before the Board concerning how the relevant provisions of the collective agreement should be interpreted. The employer also relied on the fact that the Charbonneau award had not followed the reasoning adopted in the Board's earlier awards. The -6- 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 the record as f lows : We express no opinion on the correctness of the interpretation of articles 19 and S3 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 found in the majority award is patently unreasonable. The next relevant case in time was Walberq et 259/84 (Delisle). That case dealt with the holiday pay entitlement of eight employees on workers ' compensation. The Board expressly followed the reasoning in Charbonneau. The case 'of McDermid 366/83 (Springate) dealt with an employee who had been scheduled to work two holidays but did not do so because he was off on workers' compensation. The employer approached the matter on the basis that the employee had taken the two holidays in question, and paid him his regular rate for both days. The union contended that pursuant to the reasoning adopted by the Board in Charbonneau, the employee was entitled to an additional eight hours pay for both days. In. the interests of a uniform approach to the situation of employees on workers" compen- sation, the Board panel unanimously decided to follow the reasoning in Charbonneau. In so doing, the Board commented as follows: I -7- 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 compensable in jury. The majority award in Charbonneau was judicially reviewed 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 in Charbonneau to the grievance before us. In doing so, we express no opinion as to whether the reasoning in should be applied to employees who are off work due to a non-compensable illness. The issue of whether the reasoning adopted in should also be applied to employees off work due to illness was dealt with by the Board in Robertson 0641/85 (Springate) and Bergsma 0126/86 (Fisher). The cases were heard at about the same time and decided independantly of each -other. In both cases, unanimous panels of the Board concluded that the Board should follow the reasoning adopted in the illness cases decided prior to Charbonneau and limit the reasoning in Charbonneau only to employees off work on workers' compensation. In the Robertson decision, which was released on January' 28, 1988, the Board commented as follows: As already noted, Charbonneau was a case involving an employee off on workers' compensation. The reasoning in that case has not, as far as we are aware, been applied to any case involving an employee off work due to a non work-related illness. The union contends that this matters not, relying on the fact that in the prior illness cases the union did not frame its position in the same way as it has in this case, namely claiming that the grievor is entitled to be paid under both Articles 19.2 and (52.1). In .the prior cases the union claimed payment under both 19.1 and 19.2 but not under Article (52.1). -8- The manner in which the union approached illness cases prior to the award in Charbonneau, as well as the employer's long standing practice of treating ill employees as if they had taken a holiday, indicates that neither the employer nor the union viewed an ill employee as being entitled to both sick pay under Article (52.1) and holiday pay under Article They disagreed only as to whether a sick employee was entitled to be paid under Article 19 on the same basis as if he had actually worked the holiday. It was in-light of this shared approach to the issue that the Board in Cooper made the comment that "In the case of an illness on a holiday, an employee under this agreement simply receives holiday pay Prior to Charbonneau the union did make one attempt to claim payment for a holiday in addition to the amounts provided for under Article 19. That case was Parsons, where a claim was made under both Articles 19 and (48.1) with respect to an employee who worked a holiday. The claim was rejected on the basis of the Board 's conclusion that the employee 's entitlement was limited to Article Notwithstanding the jurisprudence and prior common understanding of the parties that an ill employee was entitled only to payment under Article 19, a majority of the Board panel in Charbonneau concluded that an employee on workers compensation was entitled to payment under Article 19.2, as well as an additional payment under Article In McDermid, the Board, in the interests of a consistent approach to employees off on workers compensation, followed the reasoning in Charbonneau. The desire for consistency does not, however, produce the same result with respect to employees off work due to a non work-related illness. We are satisfied that in the instant case we should follow the past understanding of the parties and the Board, namely that the entitlement of an employee off work due to illness is to be found only under Article 19. We view this as a reasonable interpretation of the collective agreement. We recognize that as a result of our conclusion employees scheduled to work a holiday, but unable to do so, will be treated differently depending on whether they are off work on workers' compensation or because of a non work-related illness. This result, however, flows from the fact that the Board, when dealing with an employee off work on workers compensation in Charbonneau, adopted a different interpretation of the collective agreement than the parties and the Board had previously applied to employees who were ill. -9- The award in Bergsma was released on March 17, 1988. In that award the Board made the following comments: At first blush there seems to be a difference in which the older cases (especially Martin) and the newer cases (Charbonneau 1 have decided the issue. However, there is an important distinction between the cases, namely whether the illness is work related so that Section 52.2 applies. However, Martin and Charbonneau are not irreconcilable, as long as Charbonneau is limited to W.C.B. cases. For non-W.C.B. cases, the principles in Martin should still apply in that the arguments made by the Union in this case mirror their arguments in Martin. Those arguments were rejected in Martin,. and for the of maintaining certainty in the field relations, Martin should be followed. As was said in Walberq, "It is trite to observe that finality in decision-making is an attribute much to be prized. Counsel for the Ministry does not say that certain facts or laws were inadvertently not brought to the attention of the Board in Charbonneau. Counsel does not say the decision was rendered per incuriam. Rather it seeks to argue simply -- that Charbonneau was wrongly decided. Finding the "right" answer, the "right" interpretation, -is obviously our pursuit but there comes a point in litigating an issue when enough is enough. As a brake against repeatedly re-opening an issue this Board asks whether an earlier decision on the point is "manifestly wrong."; see e.g. 684/83 (Samuels Unless the earlier decision is manifestly wrong the Board should be consistent and adopt its reasoning. " - 10 In the instant case the union seeks to apply the reasoning adopted in Charbonneau to the grievor, who was off-work due to a non work-related illness. This is the very approach which was expressly rejected by the Board in both Robertson and In the interests of consistency, we are also not prepared to adopt it in the instant The grievor was entitled to receive holiday pay under Article 19.2 for November 11, 1985, which amount he did receive. We are satisfied that he was not entitled to receive any additional payment for the day. In the result, the grievance is hereby dismissed. Dated at Toronto this 15th day of August, 1988. Vice-Chairman I dissent, (Dissent attached) S.R. Hennessy Member M. F. O'Toole Member 0042/86 DISSENT This Board has spent a considerable amount of' time on the issue of,an employee who is unable to work a holiday as scheduled due to illness. As the points out it starts with Cooper 145/77 (Swan) and runs through to Bergsma 0126/86 (Fisher). .- The result has been, to say the least, rather unsatisfactory. It has resulted in, as the Board in Robertson stated: as a result of'our conclusion ft employees scheduled to work on a holiday, but unable to do so, will be treated differently depending on whether they are off work on Workers' Compensation or because of a non work -related illness" . (Underlining my own) This conclusion appears to be based on a distinction which is drawn between the reasoning in the older cases (See Martin 343/811 as opposed to what is called the newer cases (See Charbonneau 544/81). This distinction has been identified in Bergsma as: "Whether the illness is work-related Dissent so that Section 52.2 applies", 2 In my view, the proper and fair interpretation of this matter is that the grievor should be dealt with in. the same manner as that of an employee on Compensation. In order to do so the grievor is entitled to the benefits of Article 19.2 and 52.1. In this regard I concur with the approach of Board Member Robinson, who dissented in Martin, namely that an employee can claim both holiday and sick pay if he is able to bring himself within the terms of the collective agreement. After reviewing the scheme of the collective agreement he concluded that Articles 19.2 and 51.1 (now 52.1) met those requirements. Article 19.2, as the majority points out, applies "both to employees who work and those who do not work on a holiday". Article 52.1 also applies to employees unable to work because of sickness. The majorities view would negate the effect of Article 52.1 which is to compensate the grievor who is off sick and unable to work. This view avoids, in my opinion, the clear intention of the.wording "regular salary" by not paying the grievor his entitlement to sick pay for the holiday, since he was unable to work it. In my view, in order for the Board to be consistent, the grievor should be entitled to the payments under both Article 19.2 and Article 52.1 because they are based on different benefits and the Dissent 3 grievor has clearly met the test for those benefits under the collective agreement, The grievor should therefore be awarded payment for both. Since they are different benefits the prohibition against pyramiding does not apply in this case. The employer argued that the Board should use the past practice of the parties to assist it in its interpretation of the collective agreement. I would . have found that there was no evidence that the Union has acquiesced in a contrary view or practice which .the employer asserts. If I am wrong in this conclusion would have found that this if any, was contrary to a clear interpretation of Sections 19.2 and and have declared this practice to be at an end as a result of the filing of this grievance, In conclusion then I would have awarded the grievor his sick pay for November 11, 1985 based on 75% of a day's pay since the grievor had already been off sick in excess of 6 working days in the year. Dated at Ottawa, this 15th day of August, 1988. S.R. Hennessey Member