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HomeMy WebLinkAbout1986-2492.Sheppard.92-06-03EMPLO”ESDEL* COUROMVE DEL’ONIAWJ COMM,SS,DN DE RkGLEMENT DES GRIEFS IN THE NATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETNBEN OPSEU (Sheppard) - and - Grievor The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE: E. Slone Vice-Chairperson F. Taylor Member F. Collict Member FOR THE GRIEVOR. T. Hadwen Counsel Cavalluzzo, Hayes & Shitlon Barristers & Solicitors FOR THE EMPLOYER D. Brown Director Crown Law office - Civil Ministry of the Attorney General . 1 SLJPPLEMENTARY AWARD This panel issued an award on March 10, 1988, reinstating the grievor to a probationary position as a maintenance carpenter at the Queen’s Park Legislative Buildings. He had been released by the Deputy Minister near the end of his probationary period, on the recommendation of his supervisor, for poor attendance. The wrinkle had been that most of his poor attendance record was as a result of a seven- week stress-related illness that began within a month of his job starting. To make a long story short, this panel felt that there was a considerable unfairness in the grievor being released under these circumstances; nevertheless, we also felt that the grievor’s probationary period had been cut short and ought to be extended by the seven weeks that he had missed. At p.19 of our original award, we said: “....In a contest between two blameless parties we are incfirted to require the Grievor to bear the loss. We therefore order that seveti weeks be added to the Grievor’s probationary period. We also order that seven weeks of salaty and benefits be denied ro him out of the compensation that he will receive as a result of this award By this formula, we achieve a result that fi equivalent to the Grievor having asked for and been awanied a seven week unpaid leave of absence. *’ We expressly retained jurisdiction to deal with matters of implementation. We are aware that the term extending the probationary period proved controvenial. The award was taken to judicial review, which I believe was unsuccessful, but on the narrow ground that the matter had become academic, since the grievor had already completed his probation. In any event, the award stands. Surprisingly the matter has resurfaced. It appears that during the seven week illness, the grievor received sick leave benefits, which paid him 75% of his salary. He was required to top up the remaining ‘25% by using vacation days. Eight vacation days were used - one-quarter day per day of 2 absence. .He now claims that he should have these eight days returned to him, since, to quote his counsel’s written submission: “the use of vacation days does not accord with being on an unpaid leave of absence. . . . . Vacation’ credits would not have been drawn during such a leave. Therefore, the grievor is entitled to a return of the eight days vacation credits.” The retort by Employer’s counsel is: “If this submission is correct then the payment by the employer of the short-term sickness benefit does not accord with an ‘unpaid~ leave of absence’. It is our submission that if the eight days are owing then so is the monies representing the benefit paid to Mr. Sheppard during his absence.” We do not perceive any unfairness to the grievor; on the contrary, there is some force in the Employer’s argument that he ought not to have received the 75% salary under the sickness benefit! The eight vacation days were taken from the grievor, but in return he received eight days of salary that he would not have received had he not been required, or able, to cash in those vacation days. The fact that he had probably not yet accrued those days would have put him into a deficit position in his vacation bank, which he then had to make up. But the fact remains that he received full value for those days. In the grievor’s submission there is no offer to repay that money; we wonder how enthusiastic he would be to buy hack his eight days of vacation with cold cash. We are aware that vacations serve an important purpose, in giving employees time off to recharge their batteries and enjoy their lives. It is perhaps unfortunate that they are required to be cashed in to top up the sickness plan, but this does not disadvantage the grievor any more than it does any other employee who has received cash instead of vacation time. .Without so ordering, it seems fair that if the grievor wants to recover 3 eight days to be enjoyed as vacation he could be given the time off as an unpaid leave. However, we are inclined to leave this up to the Employer. In the result, the grievor’s request is denied, and matters ought to remain as they are. Dated at TORONTO this 3rd day of June. , 1992. (3a?-- Eric K. Slone, Vice-Chairperson