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HomeMy WebLinkAbout1986-1335.Dupuis.88-10-03 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD EMPLOYES DE LA COURONNE DE L’ONTARIO CPMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 128 - SUITE 2100 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 128 -BUREAU 2100 TELEPHONE/T~L~PHONE (416) 598-0688 1335/86 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Betweer,: Before: -- For the Grievor: - -- For the Employer: Ilea r ing : -- OPSEU (Daniel Dupuis) Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer P. Knopf Vice Chairperson I.J. Thomson Member D.A. Wallace Memb e r Mr. Stephen Goudge, Q.C. Counsel Gowling & Henderson Barristers and Solicitors R.B. Itenson Chief Staff Relations Officer Staff Relations Section Management Board of Cabinet May 11, 1988 INTERIM DECISION ----- -- From 1984 to 1986, the grievor, Daniel Dupuis, was forced to be absent from work because of an injury *dhich ha suffered at work. This case involves a claim for vacation credits and pension contributions during his absence. At the outset of the case, after the Union had made its opening address, counsel for the Em;?loyer indicatad that the pension aspect of the case caught the Emaloycr by surprise On the agr2amen t of the par ties, counsel simply argued the vacation entitlement issue and adjourned the pension issue to be decided by this panel at a later time. Thus, this interim decision only deals with the vacation credit issue. The facts are not in dispute. The grievor was a Correctional Officer in the Sudbury area. On June 19, 1984 he suffered a neck injury at work. On July 27, 1984 he was forced to go off work. Then, from July 27, 1984 until April 21, 1986, the grievor was absent from work. During the first 65 working days of his absence being July 27 to November 29, 1384, he received full salary under Article 54.2 of the collective agreement. There is no dispute between the parties over this period of time. On November 29, 1984 he began raceiving Workers’ Compensation Benefits which equalled 90% of his net salary. These continued until his return to work. During that entire period he was considered "totally disabled" and unable to work as a Correctional Officer. On April 21, 1986 he returned to work. Early in this period, in the fall of 1984, the grievor was givsn a written set of options from the Employer which would govern how he was paid after the initial 65 days of absence expired. He was given the option of remaining on Workers I Cornpensa tion and receiving 90% of his net salary, -2- remaining on Workers' Compensation and using up his sick leave accumulation which would have given him 100% of his salary, or claiming under the Short Term Sickness Programme. The grievor chose the first option. The issue between the parties is whether the period between November 29, 1984 and April 21, 1986 is to be used for purposes of accumulating vacation credits. The Employer has not deemed the grievor to be entitled to vacation credits during this period and the Union is claiming that Artcle 47.2 gives the grievor that entitlement. Article 47.2 reads: 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. Counsel for the Union argued that the situation of the grievor is covered by the earlier decision of this Board in I Sears and Ministry of Community and Social Services, GSB File No. 1129/86, unreported decision December 3, 1987 (M. G. Picher). That case dealt with the exact same issue and similar facts as the case at hand and concluded that a grievor is entitled to vacation credits while absent due to a compensable injury. The remedy sought by the Union was the cash equivalent for the vacation entitlement because the provisions in the collective agreement prevent carry-over of vacation credits. Counsel for the Employer argued vigorously that the Sears decision was wrong and that it ought to be overturned by this panel of the Board. Mr. Itenson stressed that vacation enti tlement depends on the language of the collective argeement and that Article 47.2 should or could not be read so as to allow vacation entitlement to accumulate while on leave for anything other than "leave with pay". It -3- was argued that absence due to Workers' Compensation Injury is not "leave with pay". Mr. Itenson took us through the collective agreement showing numerous instances where leaves of absence with pay are specified. It was argued that this list was exhaustive. This list covered leave for the Union's President or First Vice-president, Article 28.6.1; leave for foreign or inter-governmental aid programmes, Article 31.1; special leave under Article 30.1; jury or witness duty under Article 32.1; leave for military service under Article 33.1; bereavement leave under Article 49.1; absence under the short term sickness plan under Article 52.1 and special or compassionate leave under Article 55.1. Further, it was argued that Article 54.4 would be redundant if the Union's argument was to succeed. Article 54.4 reads: 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 54.2 (i.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 this award. It was argued that the scheme of the Act as a whole should be recognized as excluding vacation entitlement for those on Workers' Compensation absence. Regarding the Sears decision, it was submitted that the decision was wrong and based on concepts of equity rather than a strict reading of the collective agreement. The Decision It is helpful first to quote extensively from the Sears decision to put this matter in perspective. After reviewing the arbi tral jurisprudence of both this Board and private arbitrators, the panel hearing the Sears case concluded at page 11: -4- 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 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 f rom 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 -5- expressly guarantees a continua tion 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 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 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 collective agreement, as reflected in those articles of the agreement such as article 54.4 that protect employees with work-related injuries. Absent clear and specif ic 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 significant weight to the purported election offered to the employee with a compensable injury to revert to his or her Short-term 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 terms of Article 54.3 for the use of an employee's "accumulated credits" as a means of topping up the Award. We agree completely with the Sears analysis and decision and see no reason to decline to follow that award. The award has not been challenged by way of judicial review. Nothing in the submissions presented by the Employer suggests any errors by the panel hearing the Sears case. We see nothing in the scheme of the collective agreement that would suggest that leave with pay has been exhaustively defined in the collective agreement. Nor do we accept the submission that Article 54.4 would be redundant if the Union's argument were accepted because the Article is necessary to deal with -6- the Employer's obligation with regard to the sharing to the costs of the benefits with the employee. Further, we wish to emphasize the concept that there is an extremely heavy onus on a party seeking to convince a panel of this Board to depart from its earlier jurisprudence. This was strongly articulated by the Chairman of this Board in the decision of Blake et al. and the Amalgamated Transit Union and the Toronto Area Transit Operating Author-, - GSB File No. 1276/87 etc., unreported decision of January 22, 1988 by Chairman Shime. In that decision, it was said: But more important is that the decision in the Francis Case is the decision of the Grievance Settlement Board. In the private sector ad hoc boards of arbitration have a separate and distinct capacity to decide each case on its own merits. Recognizing that individual, but different, decisions on the same point or issue may create confusion, arbitrators have balanced the interests of individual decision making with predictability by generally adopting a policy that they will not depart from earlier decisions unless such decisions are manifestly in error. But the Grievance Settlement Board is one entity - it is not a series of separately constituted boards of arbitration. Under Section 20(1) of - The Crown Employees Collective Bargaining Act there is "a Grievance Settlement Board" - that is, one Board. Under Section 20(4) the Grievance Settlement Board may sit in two panels and under Section 20(6) a decision of the majority of a panel is "the decision of the Grievance Settlement Board. Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropria te for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that. another panel was in error only encourages a mul tiplicity of proceedings -7- and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load. We are mindful, however, that there is no provision for appeal and there are limits to judicial review. While it is our view that the "manifest error" theory is too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional c i r c urns tan ce s . - [emphasis added] Nothing in the facts before us indicate any "exceptional circumstances" which would induce us to deviate from an earlier decision of this Board. Indeed, on the contrary, we conclude that the conclusion reached in the Sears case is not only correct in equity but also correct on a strict and correct reading of the collective agreement as a whole. Thus, we would allow the vacation en ti tlemen t aspec t of the grievance. We award the grievor the monetary equivalent for the amount of vacation credits he ought to have been granted from the period of November 29, 1984 until April 21, 1986. The Board remains seized with any issue of implementation should the parties require our further assistance. The Board also remains seized with the pension issues arising out of this grievance and we shall reconvene -8- to hear evidence and argument on that point at the date previously agreed upon by the parties. DATED at Toronto, Ontario this 3rd day of October 1988 Paula Knopf Paula Knopf, Vice-Chairperson -- *I , -- I. Thomson, Member I ___ __._-.-I D. Wallace, Member