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HomeMy WebLinkAbout1986-1999.Kent.89-01-25EMPLOY& 06 ‘4 COURONNE DE LoNTARrO CPMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS Between: Before: For the Grievor: 1999/86 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BAR6AININ6 ACT before THE GRIEVANCE SETTLEMENT BOARD For the Employer: OPSEU (J. Kent) and The Crown in Right of Ontario (Ministry of Correctional Services) M.V. Watters Vice-Chairperson F. Collom Member M. O'Toole Member P. Lukasiewicz Counsel Gowling & Henderson Barristers and Solicitors G.F.J. Lee Senior Staff Relations Officer Staff Relations Branch Ministry of Correctional Services Grievor I Employer I Hearing: December 12, 1988 DECISION This proceeding arises from the grievance of James Kent dated January 28, 1987. It concerns the grievor’s enti!lement to sick pay when he was unable to work certain scheduled shifts on statutory holidays due to a non-compensable illness. At the hearing the parties filed the following Agr,eed Statement of i Facts: ” 1 . The grievor, Mr. James Kent, commenced employment vith the Ministry of Correctional Services in June, 1973. At the time of the grievance he was a classified Correctional Officer 2 at Lindsay Jail. 2. Mr. Kent during the time of the events giving rise to this grievance was working a compressed work week of 12 hours per day. 3. Mr. Kent was scheduled to work 12 hour days on Oct. 13, Nov. 11, Dec.~ 25 and 26, 1986, vhich were holidays under Article 48 of the Collective Agreement but was unable t’o work’these days because of illness, booking off sick on September 29, 1986 and continued to be off sick during the period of time in question. . Mr. Kent received 8 hours holiday pay. for each of the above noted holidays in accordance with the requirements of Article 19.02. 5. 6. In addition, as the grievor was scheduled to work a 12 hour day, the Ministry paid him 4 hours sick pay for each day pursuant to Article 52.1. The grievbr, Mr. Kent, is seeking to have the absences for the four days in question to be adjusted to reflect 12 hours sick leave for each day as per Article 52.1 and be credited with four days compensating leave as per Article 19.2 for the 4 holidays in question.” -l- The provisions of the collective agreement relevant to the resolution of this dispute read as follows: ARTICLE 19 - HOLIDAY PAYMENT .19.1 Where an employee works 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 (7-1141, eight (8). or the number of regularly scheduled hours, as applicable. 19.2 In addition to the payment provided by section 19.1, an employee shall receive either seven and one-quarter (7-l/4) or eight (8) hours pay as applicable at his basic hourly ‘ra.te or compensating leave of seven and one-quarter (7-l/4) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday. ARTICLE 48 - HOLIDAYS 48.1 An employee shall be entitled to the following holidays each year: New Year’s Day Easter Monday Canada Day Labour Day Remembrance Day Boxing Day Good Friday Victoria Day Civic Holiday Thanksgiving Day Christmas Day Any special holiday as proclaimed by the Governor General or Lieutenant Governor. ARTICLE 52 - SHORT TERM SICKNESS PLAN 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 work regular salary for the first six (6) ing days of absence, -2- (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. 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. It was the. position of the union that the grievor was entitled to a further eight (8) hours~ of sick pay for each of the statutory holidays that he was unable to work. Simply put, its claim was that the grievor was entitled to compensation under both article 19.2 and article 52.1 in respect of the days in question. In this regard, it relied on the award in Charbonneau, 544/81 where the board determined that an employee unable to work a scheduled shift on a statutory holiday because of a compensable injury or illness was entitled to payment under both articles .:’ 19.2 and 54.1 of the collective agreement. Counsel submitted that an analogous approach should be adopted by this board in this instance. It was the position of the employer, in response, that the claim advanced by the union had been previously rejected by the -3- , board in Bergsma, 126186; Robertson, 0641/85; Pavlovski, 0042/86 and Mandar. 1815/87. Counsel argued that this line of jurisprudence made it clear that the grievor was only entitled to the amounts actually paid by the employer. Pursuant to the reasoning expressed in Blake et al, 1276, 1342, 1858, 1887, 1888, 1889, 1890, 1891, 1892, 2292/87, it was submitted that exceptional circumstances did not exist so as to justify a departure from the board’s past treatment of the issue. This panel has.considered the awards referred to by the parties. We agree~with the submission expressed by counsel for the employer that the issue now before us has been previously decided by this board. . . I I \_..N,’ In Bergsma, the grievor was scheduled to work the afternoon shift of December 25th and 26th, 1985. He was unable, however, to work the latter shift as a consequence of illness. The grievor was paid eight hours for this shift. He claimed an additional eight hours of pay under the sick leave provisions. The board rejected this claim and found that the grievor was only entitled to the pay provided for under article 19.2 of the collective agreement. It followed the approach taken in Martin, 434101. In arriv.ing, at its conclusion, the board stated at page 4 of the award: -4- / L/ “At first blush there seems to be a difference in which the older cases (especially Martin) and the newer cases (Charbonneau) 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 (now 54.2) applies. Eowever, Martin and Charbonneau are not irreconcilable, as long as Charbonneau is limited to W.C.B. cases. For non-W.C.B. cases, the prin?iples 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 purpose of maintain- ing certainty in the field of labour relations, Martin should be followed.” In Robertson, the board was confronted with an identical fact situation to the one presented in this case. The grievor was a Correctional Officer employed at the Lindsay Jail and at the time was working a compressed work week of twelve hours per day. Be was unable to work the Victoria Day Roliday because of a non-compensable illness. The employer, in accordance with a practice dating back to at least the early 1970’s. paid him on the basis that he had taken the May 20th holiday, namely eight hours holiday pay as provided for by article 19.2. The employer, in recognition of the fact that had he not been ill the grievor would have worked a twelve hour day, also paid him four hours of sick pay pursuant to article 52.1. It was the union’s contention that instead of this arrangement, the grievor should have received twelve hours of sick pay. This contention was rejected by the board which concluded that: -5- “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 recognise 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 vork ion workers’ compensation or because of a non work-related illness. This result, however, flows from the fact that the board, vhen dealing vith 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. In line vith our reasoning set out above, we are satisfied that an employee who does not work a holiday on account of illness is entitled to receive holiday pay under article 19.2. Be is not entitled to the receipt of further amounts under article 51 (now article 52) with respect to the 8 hours covered by article 19.2. Given that the grievor would actually have worked a 12 hour day on Victoria Day, had he not been ill, logically he was entitled to 4 hours sick pay, which amount he did receive. The grievor is no~t entitled any additional payment. The grievance is, according hereby dismissed.” (page 131 to lY, It is to be noted that the union in Robertson made‘the same argument as it did before this board as to the desired extension of the Charbonneau award. Such argument was obviously unsuccessful. unab e due to illness to work~his scheduled.shift one Remembrance Day, 1985. Pursuant to the practice noted in Robertson, he wasp paid on the basis that he had taken the holiday. The grievor In Pavlovski, the grievor, a Correctional Officer, was ! claimed that he was also entitled to receive sick pay for the day. Such claim was rejected by the board. In this regard, the board stated: “In the instant case the union seeks to apply the reasoning adopted in Charbonneau to the grievor, vho 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 Berg-sma. In the interests of consistency, ve are also not prepared to adopt it in the instant case. 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....” (page IO) In Handar, the grievor who w.as also a Correctional Officer was unable through illness to work his scheduled eight hour shift on August 3, 1987. He was paid eight hours of pay at the straight t.ime rate. He claimed that he ought also to have been given the benefits provided for under article 52. As in the cases cited above, this claim was not accepted. After a review of the relevant jurisprudence, the Chairman concluded: “In the case at bar there are two prior decisions, Robertson and Bergsma, which are directly on point and on which the board has reached the conclusion that the grievances should fail. Moreover, as indicated, the board in each of those cases has expressly rejected the invitation to resolve the inconsistency between the two lines of cases by overruling one of them. Just as the board was reluctant in McDermid to overrule Charbonneau so we are reluctant to overrule Robertson and Bergsma. Indeed, if anything, the case against overruling these two cases’is stronger in that the board in those cases specifically entertained and rejected the very argument which has been put before us. --I- As noted above, we agree that the result is anomalous. However, the remedy to correct that anomaly must lie with the parties and should not be accomplished by the board disturbing a settled line of cases.” (pager 7-8) In the final analysis, we are not prepared to depart from the logic expressed in the above-cited awards. In the circumstances of this case, they clear~ly limit entitlement to the payment provided for by article 19.2 plus the a’dditional four’ hours of sick leave under article 52.1. We have not been /- ..~, \ persuaded that the earlier line of awards are manifestly wrong or that exceptional circumstances exist which would justify a refusal on our part to follow same. For all of these reasons, the grievance is denied. Dated at Windsor, Ontario, this 25 day of January, 1989. l.... -8-