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HomeMy WebLinkAbout1986-1129.Sears.88-03-24.- GRIEVANCE SE&EMENT IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Sears) Grievor and The Crown in Right of Ontario (Ministry of Community and Social Services) Employer Before: For the Grievor: Hearing: 1129186 For the Employer: M.G. Picher Vice Chairman J. Thomson Member I. Cowan Member S. Goudge Counsel Gowling & Henderson Barristers & Solicitors E. Hipfner Staff Relations Officer Staff Relations Branch Human Resources Secretariat December 3, 1987 . . DECISION The grievor is employed as a supply clerk in the Ministry’s Adult Occupational Centre in Edgar, Ontario. He was injured while at work on April 22, 1986, returning to work on September 3, 1986 after-an absence of just over 4 months. The sole issue in . this grievance is whether during a portion of a period of his absence Mr. Sears was, as the Union alleges, wrongfully deprived of the accrual of vacation credits, contrary to the collective agreement. The Employer maintains that for the period in question the grievor was in receipt of Workers’ Compensation benefits, and as such was on a leave of absence and not entitled to accrued vacation credits. The Union submits that he was not on an unpaid leave of absence, and that con~sequently a violation of the collective agreement is disclosed. It is agreed that from the date of his injury to July 23, 1986, Mr. Sears, continued to receive his full salary paid directly by the Employer. From July 23, 1986 until his return to work on September 23, 1986 he received a cheque directly from the Workers’ Compensation Board, in an amount totalling 90% of his net pay. The Government.of Ontario is a Schedule 2 employer within the meaning of Section 5 of the Workers’ Compensation Act of Ontario, R.S.O. 1980 c.539. It appears that a Schedule 2 employer has the option of paying an employee’s Workers’ Compensation entitlement directly to him or her from its own funds or, alternatively, opting for the payment of the employee directly by the Workers’ Compensation Board, in which event the funds paid are reimbursed to the Board in full by the em,ployer. In.this way, the employer is effectively self-insured, although it does gain the advantage of,-the no-fault system of Workers’ Compensation, together with the medical, administrative and adjudicative facilities that go with the plan. 1 :_ -2- The collective agreement addresses the situation of an employee absent by rea~n of a compensable injury. Article 54 provides as follows: ARTICLE 54 - WORKERS’ COMPENSATION 54.1 Where an employee is absent by reason of an injury or an industrial disease for which a claim is made under The Workers’ Compensation Act, his salary shall continue to be paid for a period not exceeding thirty (30) days. If an award is not made, any payments made under the foregoing provisions in excess of that to which he is entitled under sections 52.1 and 52.6 of Article 52 (Short Term Sickness Plan) shall be an amount owing by the employee to the Employer. 54.2 Where an employee is absent by reason of an injury or an industrial disease for which an award is made under The Workers’ Compensation Act, his salary shall continue to be paid for a period not exceeding three (3) consecutive months or 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. 54.3 Where an award is made under the Workers’ Compensation Act to an employee that is less than the regular salary of the employee and the award applies for longer than the period set out in section 54.2 and the employee has accumulated credits, his regular salary may be paid and the difference between the regular salary paid after the period set out in section 54.2 and the compensation awarded shall be converted to its equivalent time and deducted from his accumulated credits. 54.4 Where an employee receives an award under The Workers’ Compensation Act, and the Award applies for longer than the period set out in section 54.2ti.e. three (3) months), and the employee has exhausted all attendance credits, the Employer will continue subsidies for Basic.Life, L.T.I.P., O.H.I.P., Supplementary Health and Hospital and the Dental Plan for the period during which the employee is receiving the award. -3- In Mr. Sears’ .case, the initial 3-month period described under Section 53.2 expired on July 24, 1986. At that point he was given the option to supplement his WC8 award from earned vacation credits or to revert to the use of his Short Term Sick P Ian. He could have chosen to (rse either of those alternatives to supplement his WCB Award to an amount equivalent to receiving full salary. The grievor declined these options, however, and signed the following portion of a “WCB Option Authorization” form presented to him by the Employer, on July 23, 1986: I do not wish to supplement my Award or revert to my Short- term Sick Plan. I therefore elect to receive my Award directly from the Workmens’ (sic) Compensation Board, effective (90% of net pay). The position of the Employer is that by making the foregoing election, Mr. Sears effectively chose to take a leave of absence without pay. While the document which he signed .does not speak in terms of an unpaid leave of absence, the position of the Employer, essentially unchallenged by the Union, is that Employer representatives dealing with the grievor made verbal references to the option he selected as being a leave of absence without pay. The Union disputes the Employer’s assertion that the grievor must be .taken to have elected a leave of absence without pay for the purposes of the collective agreement. Its counsel points to the provisions of section 47 of the collective agreement which provides, in part, as follows: 47.2 An employee is entitled to vacation credits under section 47.1 in respect of a month or part thereof in which he is at work or on leave with pay. 47.3 An employee is not entitled to vacation credits under section 47.1 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. The Union submits that between July 24 and September 3, 1986 the grievor was not on a leave of absence without pay. Its counsel argues that the status of Mr. Sears, for allpractical purposes, was no different between the date of his injury and July 23rd, during which time he was paid directly by the Employer at the rate of .his full salary, with vacation credits continuing to accrue to his benefit, than it was during the period from July 24 until his return to work, when he received 90% of his net salary in the form of a cheque from the Workers’ Compensation Board. That amount was paid dollar for dollar from the funds of the Employer, as Schedule 2 reimbursements. Counsel notes that in fact for the entire period of his absence, both before and after July 23rd, the grievor was in receipt of Workers’ Compensation benefits in some form. He argues that it is inconsistent with the purpose of the Workers’ Compensation scheme or the intention of the collective agreement for the Employer to have the option of foreclosing the grievor’s rights to accrued vacation benefits by opting, as it can, to have his Workers’ Compensation Benefits paid to him in the form of a cheque from the Board, rather than as of a cheque in the same amount directly from the Employer. Counsel for the Union submits that the form of payment cannot determine whether the ~grievor was on a paid or unpaid leave of absence. He argues that the true substance of the transaction is that, firstly, Mr. Sears was not granted a leave, since’ the employer had no discretion to exercise in that regard, and, secondly, that during his absence he was at a11 times paid from funds traceable entirely to the Employer. In Counsel’s submission, the fact that for the first three months the grievor’s compensation -5- was in the form of a continued salary cheque while thereafter it was in the form of a cheque from the Workers’ Compensation Board, fully ,subsidized by the Employer, can make no difference with respect to his rights under the collective agreement. The Employer takes a different view. Firstly, its spokesperson submits that the grievance is not arbitrable. She argues that the essence of Mr. Sears’ complaint is that the practice of the Employer is simply unfair. Maintaining that there is nothing in the collective agreement to limit the Employer’s discretion in respect of the treatment of the employee who has had a compensable injury, she argues that the grievance is, in effect, an attempt to litigate what the collective agreement should contain rather than to seek a ruling on the application, interpretation or administration of its terms. On that basis she requested a preliminary ruling. from the ~Board~ that the grievance is not arbitrable. We cannot sustain the preliminary objection. As framed, the grievance before this board plainly involves an interpretation of the meaning of the words “leave with pay” and “leave-of-absence with pay” as they appear in Articles 47.2 and 47.3 of the .collective agreement. If, after July 23, 1986, when Mr. Sears was in receipt of Workers’ Compensation benefits, he was, as the Union maintains,.on a leave of absence with pay, then he would be entitled to the accrual of vacation benefits under Section 47. That is the issue upon which the parties are disagreed. The Employer argues that Mr. Sears was on a leave without pay, and that Section 47 was not intended to apply to him. We fail to see how the dispute between the parties can be characterized other than as a difference between them arising from the interpretation and alleged contravention of the collective agreement, within the meaning of Article 27 which -6- governs the grievance procedure. On that basis, we must find that the grievance is arbitrable, and deny the Employer’s preliminary motion for dismissal. We turn to consider the merits for the grievance. Nowhere does the collective agreement define the terms “leave-with-pay” or “leave-of-absence with pay”, nor did the parties provide the Board--with any evidence respecting the practice of the Employer in the application of these words in the past< although it does appear that the treatment accorded to Mr. Sears has been applied to other employees in comparable circumstances. We have no evidence, however, with respect to the awareness of the Union about these facts, or whether indeed any complaint was received by the Union prior to the initiative of Mr. Sears. In the circumstances, .we find it difficult to place. any weight on past practice as an aid to interpretation. Even if the Employer’s practice could be shown to be consistent, absent evidence of.clear knowledge on the part of the Union amounting to acquiescence, such evidence would only be a, self- serving reflection of the Employer’s unilateral view. We are satisfied, therefore, that the grievance must be resolved on an interpretation of the words as they appear within the collective agreement. In Article 29 of the collective agreement, “Leave-without-pay” is mentioned in the following terms: 29.1 Leave-of-absence without pay and without the accumulation of credits may be granted to an employee by his Deputy Minister. Other provisions in respect of leave appear in the following articles: -7- 30.1 Leave-of-absence with pay may be granted for special or compassionate purposes to an employee for a period of: (a) not more than six (6) months with the approval of his Deputy Minister; and (b) over six (6) months upon the certificate of the Commission and with the approval of the Lieutenant Governor in Council. 32.1 Where an emplnyee is absent by reason of a summons to serve as a juror or a subpoena as a witness, the employee may, at his option: (a) treat the absence as leave without pay and retain any fee he receives as a juror or as a witness; or (b) deduct the period of absence from his vacation leave-of-absence credits or his overtime credits and retain any fee he receives as a juror or as a witness; or (c) treat ~the absence as leave with pay and pay to the Treasurer of Ontario any fee he has received as a juror or as a witness. 33.1 A Deputy Minister may grant leave-of-absence for not more than one (1) week with pay and not more than one (1) week without pay in a fiscal year to an employee in his ministry for the purpose of Canadian Forces Reserve training. ARTICLE 51 - ADOPTION LEAVE 51.1 An employee who has served more than one (1) year, including service as a Crown employee immediately prior to appointment to the civil service shall, upon application, be granted by the Deputy Minister leave-of-absence without pay and without accumulation of credits of up to seventeen (17) weeks for the adoption of a child. : Mr. Sears does not fall under any of the foregoing provisions. It is also clear that these articles do not purport to be an exhaustive catalogue of leaves with or without pay. For example, Article 47.3 makes reference to “vacation leave-of-absence”, which presumably is with pay, while in Article 52, which deals with the Short-term Sickness Plan, an employee absent due to sickness or injury is described as being -8- entitled to leave of absence with pay. For the purpose of this grievance, it is instructive to reproduce that provision: 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: (iI c with regular salary for the first six (6) working days of absence, (ii) with seventy-five percent (75%) of regular salary for an .additional one hundred and twenty-four (124) working days of absence, in each calendar year. The foregoing provision suggests that in the contemplation of the coliective agreement, there is nothing inimitable in an employee being absent Asia resul’t of, a non-work related injury and that.same employee continuing to accrue vacation benefits for at least a period of 130 working days. Moreover, although the em@oyee may receive less than full wages, he or she is deemed to be on a leave-of-absence with pay. That invokes the exception described in Article 47.3 by which vacation credits continue to accrue. It is not apparent to this Board on what basis the parties would have intended to allow an employee falling under the provisions of Article 52.1, who is not injured at work and who may indeed be absent for.a longer period than the grievor, to be treated more generously for vacation credit purposes than an employee whose injury was sustained at work and who is consequently drawing Workers’ Compensation benefits under Article. 54. At a minimum, Article 52 appears to confirm the intention of the parties that an employee need not be in receipt of his or her full regular salary to be on leave of absence with pay for the purposes of Article 47.3. We consider thct,to be a significant indication in support of the Union’s argument that an employee receiving -9- 90% of his or her net salary under a Workers’ Compensation scheme should be considered as being on a leave of absence of pay for the purposes of Article 47.3. Counsel for the Union has referred the Board to two prior arbitral awards relating to the right of an employee to the accrual of vacation entitlement during an absence from work because of a compensable injury. In Re Joseph Brant Memorial Hospital of the Buriington-Nelson Hospital and Canadian Union of Public Employees, Local 1065, (1973) 5 L.A.C. (2d) 15 (Brown), the majority of the board of arbitration concluded that an employee absent in those circumstances lost neither seniority nor the accrual of vacation entitlement. In coming to that conclusion it reasoned, in part, as follows, at p.P; 19-20: The grievor, because of an injury eat work, was receiving compensation from the Workmen’s Compensation-Board and was not required to make a written request.for a leave of absence without pay. Indeed, the grievor was being paid throughout this period by both the Workmen’s Compensation Board and the hospital. For part of that period the board made its payments directly to Mrs. Nelson but certainly the grievor was continued by the hospital as an employee, and was ‘not advised of any change to her status. It has been held that absence from work owing to illness or accident does not determine the employment relationship.. Hence, in the absence of any positive step by the hospital to terminate that relationship, Mrs. Nelson would continue as an employee and there is no need to grant a leave of absence in those circumstances.~ For reference in this regard see, Re U.A.W., Local 195, and BencEx-Edipse of Car&a Ltd. (1966), 17 L.A.C. 124 (Bennett); Re’United Packinghouse, Food & Allied Workers and F. W. Feat-man Co. Ltd. (19681, 19 L.A.C. 329 (Fox); Re General TNck Drivers Union, Local 938, and Charlton Transport Ltd. (1972), 24 L.A.C. 39 (Brown). In our opinion, it is clear that the provisions of art. 14 were not meant to apply in cases of compensable injuries but rather is used for other matters where an .employee has “good and sufficient reasons” to leave work. While the hospital has the right to make rules and practices to be observed by its employees (art. 5) it cannot so act contrary to the terms of the collective agreement. To unilaterally place an employee in a position whereby the terms of any article in a collective agreement wculd i . - 10 - detrimentally affect his rights under that agreement would take clear and unequivocal language. There is an absence of such language in this collective agreement, so to automatically grant a leave of absence without pay to Mrs. Nelson thereby bringing her within the provisions of art. I4 and thus affecting her seniority, could not be sustained and that policy of the hospital must be found to be contrary to the collective agreement. Clearly the grievor could not be found to have been on a leave of absence without pay within the meaning of art. 14. There might in a proper case be ground for termination of employment of employees who must be absent from work because of compensable injuries, but to affect seniority and other benefits specifically provided in the collective agreement warId take clear and unequivocal language which is absent in the collective agreement between these parties. For all the foregoing reasons, therefore, we find that the grievance must succeed and the grievor shall be entitled to maintain her anniversary date before the adjustment and to receive the vacation of three weeks in accordance with the collective agreement. (emphasis added) A similar result was reached in Re Cranbrooke and District Hospital and Registered Nurses’ Association of British Columbia, (19791, 24 L.A.C. (2d) 274 (Thompson). In that case the board of arbitration, which was faced with an argument conceptually identical to that of the Employer in the instant grievance, unanimously allowed the employee’s claim, reasoning, in part, in the following terms at p.p. 277-78: The central factor in deciding this case see~ms to be the status of the grievor while she was receiving WCB payments. According to the employer, she was in the same position as an employee who had requested a leave of absence for personal reasons or had used up her sick leave in the course of a lengthy illness. By this interpretation she would retain all pre- existing rights, including her right to return to work, but accrue no new benefits during her leave. Although the hospital’s view is consistent with past practice, it is not sustained by a careful. interpretation of the collective agreement. - II - Article 36.07 is the only reference to the use of sick leave in combination with WCB payments. It merely states that an employee receiving such payments will remit to the employer part of those moneys to prevent an employee from increasing her income after an injury. After the exhaustion of sick leave, the employee receives only WCB payments. Both public policy and the parties in collective bargaining have long recognized the special circumstances of employees receiving these payments. Their absence from work is a direct result of performance of their duties. They are subject to periodic examination or treatment through the WCB, and they suffer a reduction in income under the schedule of payments. They must be offered employment when they are able to resume work. These considerations separate them from employees who are sick or are granted voluntary leave. In this case, the grievor did not apply for a leave of absence, nor was she formally granted such a leave. For all of these reasons, arbitrators normally rule that the employment relationship continues in all significant respects during an absence- arising from a work-related injury: Re U.A.W., Local 195, and Bendix-Eclipse of Canada Ltd. (19661, 17 L.A.C. 124 (Bennett). Moreover absence from work on workers’ compensation is a right of the employee. It is not granted by the employer: Re Victoria Hospital Corp. and London & Dis&t Service Workers’ Union, Local 220 (1977), 15 L.A.C. (2d) 1984 (Brent). If an employer granted permission for such an absence, it could logically withhold permission under some circumstances. Yet neither the-law nor the collective agreement would allow an employer to adopt such a policy. Therefore, clear language is necessary to deprive employees of q~y rights under the collective agreement while they are receiving WCB payments: Re Joseph Brant Memorial Hospital of the Burlington-Nelson Hospital and C.U.P.E., Local 1065 (19731, 5 L.A.C. (td) 15 (Brown). (emphasis added) In our view the foregoing authorities, which reflect the preponderant body of arbitral jurisprudence against which the parties bargain the terms of their collective agreement, correctly state the principles to be applied in this case. The grievor was absent on a compensable injury. In those circumstances his absence was neither a matter of his choice nor of his Employer’s discretion. While he can be said to have been on a leave of absence, it was a leave which was his right by the operation of law, at least until such time as his employment was otherwise terminated. During the first i - - 12 - three months of his absence, he received his ‘regular salary pursuant to the provisions of Article 54.2. During that time he was deemed by the Employer to be on a leave of absence with pay, and vacation credits continued to accrue to his benefit under Article 47.3. After July 23, 1986, Mr. Sears received 90% of’his net salary in the form of a cheque from the Workers’ Compensation Board. In reality, however, all of those monies were also paid by the Employer,.through its arrangement for reimbursement with’the Workers’ Compensation Board. How, apart from the bookkeeping, can the treatment of the grievor in these circumstances be distinguished from the treatment of an employee absent, perhaps for a longer time, for illness or injury under the provisions of the Short-term Sickness Plan as described in Article 52 of the collective agreement, for whom the accrual of vacation credits continues without interruption? We fail to see any logical basis for a distinction, and cannot conclude, on the balance of probabilities, that any such distinction, was intended by the wording of the collective agreement. We are satisfied that in the contemplation of the agreement, an employee in receipt of Workers’ Compensation Benefits is on a leave-of-absence with pay within the meaning of article 47.2 and 47.3, and is entitled to the continued accrual of vacation credits. The foregoing conclusion is also supportable on a purposive view of the objectives of the Workers’ Compensation scheme incorporated within the collective agreement. The goal of that plan, at least in part, is to minimize the impact of a compensable injury upon an employee, saving him or her, insofar as possible, from the negative consequences of the inability to work as a result of an employment-related injury. That is plainly reflected in Article 54.4 of the Agreement, which expressly guarantees a continuation of the Employer’s subsidies in respect of a number of critical benefits during the period of time an employee is receiving his or her Workers’ Compensation Award beyond the initial three month period. We find it difficult to - 13 - I conclude that the collective agreement was intended to discriminate against the work- injured employee, depriving him or her of the continued accrual of vacation entitlement while granting that very right to the employee who is absent, perhaps for a longer time, by reason of illness or an injury that is not work related. Such a policy would be inconsistent with the fundamental spirit of the Workers’ Compensation scheme, and the general intention of the col&tive agreement, as reflected in those articles of the agreement such as article 54.4, that protect employees with work-related injuries. Absent clear and specific language, we cannot conclude that the parties intended to disentitle an employee from the accrual of vacation credits in that circumstance. Nor can the Board ascribe any sjgnificant weight to the purported election offered to the employee with a compensable injury’to revert to his or her Short-term Sick Plan after the initial period of 65 working days described in Article 54.2. The collective agreement simply makes no reference to such an election, providing only, in the terrm of Article 54.3 for the use of an employee’s “accumulated credits” as a means of topping up the Award. For the foregoing reasons, the Board concludes that for the period between July 23, 1987 and September 3, 1986, during which time the grievor was in receipt of Workers’ Compensation benefits, he was on a leave of absence with pay within the meaning of Article 47.3 of the collective agreement. As a result, he was entitled to the continued accrual of vacation credits under article 47.1 of the agreement. The grievance is therefore allowed, and the Employer is ordered to adjust Mr. Sears’ vacation credits accordingly. We retain jurisdiction in the event of any dispute between the parties respecting the interpretation or implementation of this Award. DATED at Toronto this 24ch day of March 1988 -“-)L!l& Michel C. Picher Chairman I’ . THOMSON - Member I. COWAN - Member ADDENDUM I have reviewed the award of thechairman in this matter and am pleased to concur subject only to the following concerns. At Page 8 it is stated that . . . . “that same employee continuing to accrue vacation benefits for at least a period of 130 working” days. The benefit, in fact, may continue to accrue for a maximum of 130 working days. At Page 12 it is stated . . . . “the treatment of an employee absent, perhaps for a longer time . . . . .“. This same expressi.on appears again at the top of Page 13. The pointof this addendum is simply to draw attenticn to the fact that, while an employee may be absent as the result of a non-work - related injury and accrue vacation credits for a longer period than an employee absent as the result of a work related injury the maximum duration during which the former can continue to accrue vacation credits during absence is 130 days while, if the principle set forth in this award is to be followed, the employee absent as the result of a work-related injury and subject to a W.C.B. award may continue to accrue vacation credits for an unlimited period of absence. In the view of this member of the panel, this does create a distinction between the two situations which are compared at pages 12 and 13. 1.J. Cowan, Member