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HomeMy WebLinkAbout1986-1335.Dupuis.89-06-23!. i ” i , 8 OWA/?!O EMPLOv~SoElA co”*oNNE :.~ I / >: ..ij cRoI”NEMPmIEEs DEL’ONTARIO GRIEVANCE CQMMISSION DE SEll’LEMENT REGLEMENT BOARD DES GRIEFS IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD Between: OPSEU (DuptiiS) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer ,. _. Before: 'C>' For the Grievor:~ :~~~~,~c:r; For the Emulover: . . >, Hear&q: April 14, 1989 P. Knopf I. Thomson D. Wallace Vice-Chairperson Member Member R. Ross Wells Martha~Milzynski ' Counsel Gowling & Henderson Barristers & Solicitors -.. Susan A. Currie J. Laberge . Staff Relations Officer Management Board of Cabinet INTERIM AWARD II _----- ----- This :ase concsrns the questian of the Em?loyer’s obligation co make pension contributions for an irn?lo;fa” ii’?0 has been absent for over six months while in rece~pc 0: .WorkecS Compensation aanefits; The r-e is no ,dispute over the relevant facts. .They ar? set lout I” detail in the interim award issued b:r this Board concerning this grievance on Ockober 3, 1988. The further assantial facrcs for purposes of this as?~ect of t?? award are that at all relevant times the grievor *as collecting Horkers’ Compensati.on benefits and ha,d 5.?en Jzemn?l by ttls Workers ’ Compensation abard to 5e ” cem?orari ly to ta1 1.; disablad”. He was receiving all the benefits avalla5l-e ur,<sr Article 54.4 of the collective agreement which ?rovldes: Where an employee receives an award under The Workers’ Compensation Act, and the Award applies for longer than the period set out in set tlon 5c.2 (i .e. three (3) months), and the employee has ._ exhausted all attendance credits, tha Zm>loyer riilll continue subsidies for Basic Life, L.T.I.P., O.ti.I.P., Supplementary Health and Hosei.tal and Dental Plan for the period during which the employez is receiving the award. ‘” He also wants to Senefit from the Lmployer making pension contributions under Ar~ticle 42.3 which Trovides: The Employer will continue to maie pen’sion contributions and sramium payments for 3.X. I. P., the Dental Plan and for Supplementary Xealth an? Hospi ta1 on Sehalf oE the employee, at n~o cost to the employee while the em?loye? receives or 15 qua.lified to receis?e L.T. I:P. bene.fits under the plan, unless the employee is supplementing a W.C.3. aw;ir’d. -2- The grievor never applied for long term income protection benefits (L.T.I.P.) because, as Union counsel explained, there appeared to be no financial-reason for doing so. Under the Workers' Compensation scheme, the grievor was receiving 90% of his net salary: L.T.I.P. would have paid him only 66-2/3% of his gross salary. Further, ,._, Article 42.2.2 "sets off" L.T.I.P. from WCB.receipts, so even if he had been approved by the L.T.I.P. carrier, Confederation Life, he would not have received any actual money from L.T.I.P. But the Employer has consistently taken the pOSitiOn that the grievor should ,and, indeed, had to apply for L.T.I.P. in order to determine iE he was eligible or qualified to receive L.T.I.P. benefits before the Employer would make any contributions under Article 54.4. In January 1985, the grievor was notified by the Ministry that the Ministry was applying for L.T.I.P. on his behalf and he was asked to comple.te the application forms and submit an attending physician's statement to the insurer. When he failed to do this, he was notified in June 1985 as follows: . . . It would be disadvantageous to yourself if you do not go on L.T.I.P. The redson being, that while on L.T.I.P., your benefits including pension contributions are maintained. L.T.I.P. has a three-part application 'process, .requiring submissions from the employee, the emp,loyer, and the attending physician. It also has a definition of totally disabled which reads as Eollows: "Totallv disabled" shall mean, for the first 30 months bf total disability, an employee is wholly and continuously disabled by illness or accidental bodily injury which-prevents him from performing any and every duty of his normal occupation. However, during the Qualifying Period, the employee shall 32 deemed not to be totally disabled and , . ‘,. 1, (;’ $& _~ . . . 3 - total disability shall be deemed not to exist if the employee is engaged in any employment for wage or profits. After the first 30 months OE total disability, “totally disabled” shall mean he is unable to perform any.and every duty of any occupation for which h2 is r2asona5ly fitted Sy ejuca tion, training or experience. This deEi.nition differs somewhat from the definition un;ler the collective agreement which’ provides that: 42.2.1 Total disability means the continuous inability as the result of illness, menca? disorder, or injury of the insured empioyee to perform any and every duty of his normal occupation during the qualification pfr+d, and during the first twenty-foslr (24) months of benef i t :period; and thereafter ~.z::, during the balance of the benefit period,. the inability of the employee to perform any and every duty of any gainful occupation for which he is reasonably fitted by education,, training or experience. The L.T.I.P. Plan is written by Confe1eration Life. It a!53 contains several provisions throughout the Plan that set forth the insurer’s power to monitor the claimant’s con,ditior. and determine contractual eligibility. For exam,ple, one provision reads: Confederation Life shall ‘have the right (at its o3:vn expense) to require a claimant to undergo a physical examination or a mental examination when and so often as may be reasbnablg. The result of the monitoring by Confe~derction Life has b-en that there have beencases on record where L.T.I.P. has rejected claims ‘by employees who had been considered as “temporarily totally disabled”~‘by Workers’ Com~cnsation.Sut not considered totally disabled by the insurer. AlSO, employee~s have been considered qualified for C. P. P., but have been rejected by L.T.I.P. For purposes oE these proceedings, the parties agreed to defer the medicai question of whether the grievor was “temporarily totally disabled” pending the advice given by this Board as to the Employer’s obligation under...ths relevant articles. The Board agreed to assist the parties to understand their obligations under Article 42.3 and we agreed to remain seized on the question of-the grievor”s medical condition should the need arise in the Euture.. The Arqumen t - Counsel for the Union began his argument by explaining the scheme of benef.its available to employees h’!lo are off work on Workers’ Compe:nsation claims. .Be explained that claimants who are considered totally disabled receive the additional benefit under Article 42.3 of having their pension contributions ‘payable. We ~were told to look at particle 42.2.3 to determine if an employee is qualified to receive L.T.I.P. and then to looks to Article 42.2.4 to achieve the definition of disability. We are told that if the grievor fits the definition of total disabi~lity under t!xe collective agreement, he should be considere;d to be entitled to L.T.I.P. benefits and-to therefore qualify for the pension contributions. It was said that the Employer.is financially responsible for the payment, therefore the Employer ought to accept the obligation to decide who ought to be eligible for the payment. It was argued that si‘bce the language of Article 42.3 speaks of “qualified”, it does not demand that an employee obtain approval or be considered eligible by th6, carrier of the L.T.I.P. scheme. It was also said that this Board has jurisdiction to determine whether the Employer has. properly denied the benefit under Article 42.3 and to horder that the Employer pay such a benefit. It was conceded that the Employer must determine whether the employee is qualified under the L.T. I.P. plan and to do so would look to the. : ~ i - 5 - -;.,: ,:~ definition in the collective agreement as well as the Plan itself. But the factual question of whether the employee is qualified should be something that the Employer determines and which can be made reviewable .oy this Board. It was said that this is no different than the way the Employer operates under the short term disability protection scheme under t!-,;e collective agreeme,n t. The Employer argued that it would be improper to draw an analogy between~ the Employer’s obligations under the short term sickenss plan and the long term sickness plan. Und’e r :;?z:*$g -vi. the siort term sickness provisions in the collective agreement, Articles 52.9 and 52.13 specifi,cally give the Employer authorization to seek, further med-ical information from the employee in order to monitor the Employer’s obligation to pay such benefits. There are no similar provisions under the long term protection provisions and it was argued that their absenc’e implies that the Employe- does not carry the same obligations that it does un,jer the short term sickness plaa.. It was said that Article 42.3 creai?s the obligation on L.T.I.P. to determine who is qualified. for the plan and that the Employer is not in a position to determine such qualifications. It was said that the people in the i-linistry are not metdical experts and should not be obligated to determine a question of medical disability. It was also said that if the Union’s argument were to prevail, the grievor would be treated differently and disadvantageously because he would lose the abili ty under the collective agreement to appeal a denial of deemed qualificatior. for L.T.I.P. to the Joint Insurance Benefits Review Commi tte~e under Appendix 5 of the collective agrremen t. Counsel for the Employer also referred us to the Public Service Supefannuation Act, RSO 1980 c. 419, --- - section 21.2 which provides: ~,. -, .._ : . . ‘;;.;I Where a contributor has qualifed for a benefit under an approved long term income protection plan in re’spec t of a disability incurred on or after the 1st day of July, 1974, a contribution shall be made to the Fund on behalf of the contributor... It was argued that we ought to read the collective agreement as consistent with .the Act and that the Employer would not have the power to agree to a payment unless the employee,“has qua1 if ied” for the benefit. In ,reply, the Union argued that the Employer’s reference to the Joint Insurance Benefits Review Committe.? was not relevant or appropriate because the benefit being ,., claimed here was not an ,insura:nce benefit which would ba subject to review by that Committee. Instead, it was an Employer’s obligation to pay under the collective agreement and not an insurer’s liabili-ty. The Decision The key to this case is the meaning.of. the phrase “qualified-to receive L.T.I.P. benefits under the plan” in Article 42.3. It is clear that an employee who actually receives L.T.I.P. is entitled to have the Employer make ihis _ .pension plan contributions under Article 42.3. But the collective agreement also obligates the Employer to make the payments f0.r an employee who is “qualified to receive” the benefits under the Plan. The Employer would have us conclude .that only the L.T.I.P. carrier can determine the qualification, whereas the Union says that tne -obliga tisn rests on ‘the Employer even when an. employee makes no application for L.T.I.P. Every reference avai.lable to us leads us to the conclusion that the language of the collective agreement does - 7 - !,~,.: not require that the L.T.I.P. carrier is the exclusive judge of who should receive benefits under Article 42.3. The collective agreement speaks of a situation where an em?loyce “receives” or “is qualified to receive L.T. I.P. II In contrast, the L.T. 1.P.~ Plan itself uses the language oE “eligibility” rather than qualification. Throughout the Plan, it speaks of when an employee Secomes~eligiSle for insurance and of “eligible’ employees. While the tetxs~ “qualifications” and “eligibility” can be considered synonymous in many situations, ths us;? of different terms throughout cannot Se ignored. If tAe collective agreement was intended to require that the insurance carrier dster,mins the question of total disability for employeas who either receive L. T. I. P. or who would be considered acceptable to t’lat insurer, then one would expect the collec tiv:: ayraeemant to mirror the language of the Plan jy reading “an employee who receives or who is eligin to receive L.T. I: P. Senefi ts under the plan.” However, no such language exists hare. Similarly, significant reference can be made to the Public Service Superannuation AC. - The Act deals with. 10~~; term income protection for nsn-unionized public servants. Section 21;2 of that Act gives us the phrase, “whera a contriSutor has qualified for~.a Senafit [emphasis adde_fl. The words “has qualified” denote a or.ocess oE havin.g made application and gained acceptance unJer ~a relevant plan. This is easily contrasted with the phrase “is qualiEe3”. Tha prasent tense does not necessarily denote that acceptance i5as been formalized. Instead, it denotes. the potential of acceptance. Again, had the collective agreement simply read, “While an employee receives or hasxlifed to receive - -- L.T.I.P. benefits under the Plan,” it would So easy to conclude that no.oaligation would arise. until formal a??roval or deemed qua1i.f ica tion was 05 tained. Given the legislative context Pointed out to us, the absence of tie phrase .:‘>a_5 qualified” as compared to the phrase “G qualified” cannot 22 . ‘; -. benefit that would be within the scope that Committee in any event. Thus, we declare that the Zmpl collective agreement when it requ’irad employee chooses not to apply for L.T.I.P., but is otherwise qualified to receive the benefits available under the L.T. I.P. Plan Secsuse of total d,isability witnin the meaning of that Plan, the Employer must still make those contributions. Noth,ing requires the employee to apply for L.T. I.P. or to have been approved Eor coverage “in princlgle” by the insurer. Thus, the Employer has the right and tha obligation to determine t!hat qualification. When the Employer makes the enquiries to determine if an employee meets the requirement of the collective agreement and the Plan, then the Employer is obiigated to pay the contri!:,uti,ons wnen the qualifications are de,emed to be met. We do not agree that this conclusion takes sw~ay any rights of access to the Joint Insurance Benefi.ts Review Committee as the Ministry su’gges ts. The simple reason ~for this is that the benefit being claimed is not an insurance oyer breac?ed the the employee to apPly for L. T. I. P. before considering whether banefi ts xers paya!!~l? Iunder Article 42.3. If the grievor’s medical condition was such that he was qualified to receive L.T. I.P. s2nefix ;ndzr the Collective Agreement a:13 the Plan, th? tlmployer 3:1c~ill~3 maka contributions necessary to cover. tile perids for whicl the grievor would have been qualif~ied. Vi? trust that the parties will be able to satisEy peach other as to tiie grievor’s medical condition and his situation at, 211 rel.?~i;tt ., J ,. z I: .: -a- All Article 42.3 se,?ms to require is that the employee be qualiEied to receive L.T.I.P. 5eneEits. It’does not specify that he must apply and. be approved by the carriar. It does not specify that the application even oe acceptable to the carrier. The employee need only be in acttual receipt of L.T.I.P. or Se “qualifed” to recei’le th+ benefits under the Plan. Who then is to .determine whether fan employee is qualified to receive the benefits under the Plan if no application is made? The insurer has no obligation to ‘make the payments under Article 42.3, therefore has no interest in monitoring the eligibility. The c5ligation to make the payments is solely upon the Employer. ~Thus, since the .collective~ agreement does not specify otherwise, the Employer has the right to determine if the employee is “qualified to receive L.T.I.P. SeneEi ts under the Plan. Clear~ty , in determining that., question of qualification, the Employer xi11 have reference to Articie 42.2.4 and to the definition of tot31 disability under Confederation Life’s L.T. i.P.~ scheme. Indeed, the Vnion acknowledged that the Employer could have reference to the restricted definition of total disability under the Plan. Further, this right to :1etermine qualification also carries with it the right to monitor thz question of continued qualification for benefits. The Employar’s role in this regard wo,uld be mirrored by. the role the Employer plays in monitoring and enforcing its rights and obligations undar the short term sickness plan in Article 52. This was acknowledged by the Union. In short, ~the Employer must make pension contributions for employees receiving L.T. I. P. If an ,. .: v,.‘: times. Howebe r , w& retain jurisdiction to deal with this matter further shou d our assistance Se require:j. DATED at Toronto, Ontario this 23rd 1989. day of June ------ I. Thomzn .L biember