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HomeMy WebLinkAbout1986-0126.Bergsma.88-01-21MAR311988 i 126186 IN THE MATTER OF AN ARBITRATION under before Between: Before: THE GRIEVANCE SETTLEMENT BOARD OPSELI (Pete Bergsma) and The Crown in Right of OnCario (Ministry of Health) B. Fisher Vice Chairman I. Freedman Member G.J. Milley Member For the Grievor: C. Dassios Counsel Gowling & Henderson Barristers & Solicitors For the Employer: A. McChesney Staff Relations Officer Staff Relations Section MZU-~~FXIIWX Board of Cabinet Hearing: Seprember 10, 1987 Grievor Employer &g~~-j-gp& r ff” ‘. J ‘\, .% ._DECISIO.i 4, ,,~ MR 2 F 19% j 1. ?. .I 6' -.,: ,+ DePUrY MI?:!STLR & *":~>~~: &ip+$g ".i -.:.;~::..T=;rJ This case involves +L?E relationship between payment for statutory holidays LIIC~~I- Article 19.1 and payment for short term sicJa?ess urder Article 52. .Tne parties presented this Board with an agreed statement of facts as follows. 1. Thegriwor, Peter& Eerqsm, ix3ganeuploymentwiththeMinisQyof Health on Monday, tGa?xh 25, 1985 as sn Ambulance Dispatcher. He was and is classified as aRadio operator2 withthe LDtion central Ambulance Cmrmicatioris Centre, Ministry of Health, 205 York Street, London, Ontario. 2. Mr.BeIg&ams schezbledtoworkthe afternoon shift of: (a) w&-Jay, lX+&sr 25, 1985; (W .rr.ursdayt !&cembr 26, 1985; (cl FriaaY, Deceker 27, 1985. 3. -25thard- 26th are the ck5stms Day and Boxing Da} statitcry holidays under Article 48.1 of the Collective'~t between the Union and the Ebployer. 4. Mr. E!eqmnawOrkedhis shift of Wednesday, December 25, 1985 and G.ZS capmated in accordance with Articles 19.1 and 19.2 of t&z Collective M-J===-. 5. Mr. Rpmstra was ill on Dnmday, December 26, 1985 and did not report to work that day. He worked on Friday, December 27, 1985. -2- 6. Mr. Bergs@ was paid 8 hours' pay for his shift of Thursday, Decerlm 26, 1985. For payrcll pupxes he was recorded as having a statutory holiday on that date. 7. Mr. Eergsma is assignedtohours OfworkSchedule 4.7. Hisnormal hoursofworkare4Ohmrsperweekand8hoursperday. Thegriworclaim that he is entitledto anadditional hours' payundertie sick leave provisions. Tne follcwing cases, in chronolcgical order according t&their decision dates, were presentedtothe B3ardby the parties. 1. Farsons 31/J8 (Richard) In this case the bard held that Articles 19.01 and 19.02 provide "a relatively cmprehensive code of entitlema+ to holiday paydealingwithbothpersonswfioare~toworkand those not mqb-e3 to work on statutory holidaysl'. me Eoardheldthatthe anplcyeetiomrkedwas entitled to paynentm&rSection 19.01 and 19.02 but not also tier Article 9 (now 48.1). This case did not involve anemployeewhowas illontheholidaywhmhexas scheduledtoworkthat 2. caoaer 145/77 (swan) In this casethegriworworkedpart of a statutoryholidaybuthad to leave before the emi of the shift due to illness. me Board held that Article 19.1 m.%s not applicable to the portion of the day that the grievor was ill and not working, thus he was only entitled to his 8 hours under 19.2 plus his portion of the daythathe a&uallyworbdunder19.1. No reference was made in the case to an entit.lemntunderArticle 52. 3. ~.. &J&J 434/81 (Delisle) meg-riworwas scheduledto~rkonaholidaybutdidnotdosobecause of a non-work related urgency. He was only paid tier 19.2 and not paid under 19.1 as he did not actually work. This fact situation is exactly the same as the present grievance. Inthat -theUnion also referredto the sickness provisions in Article 51 (nox 52) as they have done in the present case and argued that Vxgular~salary" means the salaryhewouldhave received hadhemrked on the holiday, in other words, the pay u&r 19.01 gJ 19.02. me Ecaxd held in that case that the grievor was only entitled to a payment u&r 19.02. me Beard also referred to Article 21 (non Fyramidixg) as grounds for denying the griwor imre than 8 hours'pay. 4. CharboMeau 544/81 (Barton) me grievor in this case was on Workers' Cmpansation benefits on a holiday @n whichhewas s&&&d towork. me Beard held in that case that Section 53.2 (nm Article 54) created a separate e&tlementto pay so that the grievor received 8 hcurs' pay under Section 53.2 & 8 hours' pay for Section 19.2. T!le factsinthepresantcaseareidmticalto chartxnuleau, except that the illness in this case was not aqxmsable by W.C.B. - 4 -. 5. Walbarg 0704/85 @lisle) mis - involvedthesaue factsituationas i.nCharbonneau, inotherwords, a W.C.B. injury. me Board followed charbanneau. 6. NSarmid 366/83 (Springate) This case involvedthe - factsituationas Charbonneau, inotherwords, a W.C.B. injury. me Board followed Cbarbonneau but made the followirg comment, WI (3mrkanneau, the Ecarddealtwiththevery issue now before us, namely the holiday entitlement of an employee scheduled to work a holiday but unable to do so because of a xqensable injury. menejorityaward inCharbo-uwas judiciallyreviewedbythe Divisional court, which declined to quash it. In the Merests of a uniform approach to the issue, weprqosetoapplythereasoning inthemajority in Charbmneautotheyrievance bafore.us. In doino so, we exoressnoooinionastowhetherthe reasonins in Charbonneau should be aoolied to eoolwees who are off work due to a non- uxxnsable illness. (enphasis added) Atfirstblushtbereseermtobeadifference inwhich the oldercases (especially Martin) arxdthenewercases (marbonneau) havedecidedtheissue. However, there is an ingzortztntdistinctionbetweenthe cases, nanelywhether the illness is work related so that Section 52.2 applies. Howwer,MartintiCha&xmsauarenot irraconalable, aslongas Charbonneau is limited to W.C.B. cases. For non-W.C.B. cases, theprirsiples inMartin should still apply inthattbe arguwrtsnMebytheUnion in this -mirrortheir arguments inMartin. Those argumantswere reject& inMartin, and for the purpose of maintaining certainty in the field of labour relations, Martin should be followed. -5- Aswassaid inwalbery, "It is trite to obse?xe that finality in decision-makiq is an attribute mch to be prized. Cmnsel for the Minktry doesnotsaythatcertainfadsorlawswereinadvertently notbrcughttothe attmtionofthe Board inCharkomu. Counsel dces not saythedecisionwas rexkr&per kmriam. Ri&heritseekstoazguesiq~lythatc%arbomuwaswrcolgly decided. Finding the Vightvl answer, the Vight" interpretation, is obviouslyourpxsuitbutthere ames a pointin.litigatingan issuewhen enough is emnqh. As a brake againstrepeat&lyre-openiqanissuetbiska.rdasks whether an earlier decision on the point is %anifestly wrong."; see e.g. m, 684/83 (Samuels). Unless the earlier decisionismnifestlywrongthe Board shouldbeconsistent and adopt its reasmirx~.~~ The~g-riwance is therefore dismissed. thjs 17th.day of March, 1988 G. Milley, Menber /