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HomeMy WebLinkAbout1986-2615.Lambert and Slaght.88-03-15ONTARIO EMPLOY& DE LA CO”RONNE CROWNEMPLOYEfS DEL’ONTARIO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 2615/86 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Wayne Lambert & Greg Slaght) Grievers and The Crown in Right of Ontario (Ministry of Correctional ,Services) Before: For the Grievers: For the Employer: Hearing: R.L. Verity, Q.C. Vice Chairman S. Nicholson Member H. Roberts Member D.I. Bloom Counsel Cavalluzzo, Hayes & Lennon Barristers and Solicitors G.E.J. Lee Staff Relations Officer Ministry of Correctional Services January 19, 1988 Employer ,,: 2:: -2- DECISION The grievors Wayne Lambert and Greg Slaght allege improper denial of sick pay for days on which they were ill, and which had been previously scheduled for compensating leave. Payment for the days in question was made by the Employer under compensating lieu time. The remedy requested was a return of lieu time credits alleged to have been improperly deducted and a substitution of sick pay benefits. The matter proceeded primarily by way of an agreed Statement of Facts and submissions.~ The agreed facts are as follows: 1. 2. 3. 4. STATEMENT OF AGREED FACTS Mr. Wayne Lambert and Mr. Greg Slaght are employed as Youth Officers at the Sprucedale Youth Centre in Simcoe. The grievors work 12-hour shifts on a rotating shift basis. In 1986, both Mr. Lambert and Mr. Slaght worked on statutory holidays, thereby accumulating lieu time credits as per their option under Article 19.2 of the Collective Agreement. Under Article 19.4 of the Collective Agreement, compensating lieu time accumulated under Article 19.2 may be taken off at a time mutually agreed upon by employee and employer. Failing agreement, such time off may be taken in conjunction with the employee's vacation leave or regular day(s) off, if requested one (1) month in advance. 2 -3 - G Facts Concerning Mr. Wayne Lambert 5. 6. 7. 8. 9. 10. On December 2, 1986, Mr. Lambert filed a request with his supervisor, Benji Onifrichyk, to take compensating leave on December 17 and 18, 1986. This request was approved on December 5, 1986. On December 8, 1986, Mr. Lambert booked off sick. He was absent from work due to illness from December 9, 1986 until December 26, 1986 and returned to work on December 31, 1986. The grievor was paid by the employer on December 17 and 18, 1986 as his compensating leave (lieu days) as required under Article 19.4. Mr. Lambert requested in writing on January 5, 1987 that the lieu time credits which had been scheduled to be used on December 17 and 18 be returned to his lieu time bank and that December 17 and 18, 1986 be considered sick days as per Article 52.1. Mr. Lambert's request for return of the lieu time credits was denied on January 15, 1987 and he filed a grievance on January 24, 1987. Mr. Lambert's period of absence from December 9 to December 24, certificate. 1986 was covered by a medical He received sick pay to compensate his absence as follows: - December 9, 1986 - sick pay - December 10 and 11, 1986 - regular days off - December 12, 13 and 14, 1986 - sick pay - December 15 and 16, 1986 - regular days off - December 17 and 18, 1986 - compensating lieu time - December 19, 20 and 21, 1986 - regular days off - December 22 and 23, 1986 - sick pay - December 24, 1986 - regular day off - December 25, 1986 - regular day off (received compensating lieu time as per Article 19.3) Facts Concerning Mr. Greg Slaght 11. Mr. Slaght filed a request early in January, 1987 to take compensating leave on January 31, 1987. This request was approved. f- .> j ., i .i -4 - "12,' On January 20, 1987, Mr. Slaght suffered an 'injury and booked off sick on the following day. Mr. Slaght was absent from work due to injury until February 4, 1987. 13. 14. On February 4, 1987, after his return to work, Mr. Slaght requested that the lieu time booked for January 3 1, 1987 be returned to his lieu time bank and that January 31, 1987 be considered a sick day as per Article 52.1. This request was denied on February 5, 1987 and Mr. Slaght filed a grievance on February 10, 1987. The period of Mr. Slaght's absence from January 21 to February 4, 1987 was covered by a medical certificate. With the exception of January 31, 1987, which was paid to the grievor as compensating leave as per Article 19.4, Mr. Slaght received sick pay to cover his absence as follows: - January 21 and 22, 1987 - sick pay - January 23, 24 and 25, 1987 - regular days off - January 26 and 27, 1987 - sick pay - January 28 and 29, 1987 - regular days off - January 30, 1987 - sick pay - January 31, 1987 - compensating lieu time - February 1, 1987 - sick pay - -February 2 and 3, 1987 -, regular days off The dispute focuses upon two provisions of the Collective Agreement. ARTICLE 19 - HOLIDAY PAYMENT l 19.1 Where an employee works on 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-l/4), eight (81, 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 rate or -i -' 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. 19.3 19.4 I) 19.5 19.6 When a holiday included under Article 48 (Holidays) coincides with an employee's scheduled day off and he does not work on that day, the employee shall be entitled to receive another day off. Any compensating leave accumulated under sections 19.2 and 19.3 may be taken off at a time mutually agreed upon. Failing agreement, such time off may be taken in conjunction with the employee's vacation leave or regular day(s) off, if requested one (1) month in advance. Any compensating leave accumulated under sections 19.2 and 19.3 in a calendar year which is not used before March 31 of the following year shall be paid at the rate it was earned. Effective March 1, 1978, the March 31 date may be extended by agreement at the local or ministry level. Notwithstanding anything in Article 19, employees who are in classifications assigned to Schedule 6 and who are required to work on a holiday included in Article 48 (Holidays) shall receive equivalent time off. ARTICLE 52 - SEORT 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 regular salary for the first (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. -6 - 52.2 'An employee is not entitled to leave-of-absence with pay under section 52.1 of this Article until he has completed twenty (20) consecutive. working days of employment. 52.3 Where an employee is on sick leave-of-absence which commences in one calendar year and continues into the following calendar year, he is not entitled to leave-of-absence with pay under section 52.1 of this Article for more than one hundred and thirty (130) working'days in the two (2) years until he has returned to work for twenty (20) consecutive working days. 52.4 An employee who has used. leave-of-absence with pay for one hundred and thirty (130) working days in a calendar year under section 52.1 of this Article must complete twenty (20) consecutive working days before he is entitled to further leave under section 52.1 in the next calendar year. 52.5 The pay of an employee under this Article is subject to deductions for insurance coverage and pension contributions that would be made from regular pay. The Employer-paid portion of all payments and subsidies will continue to be made. USE 0~ ACCUMULATED CFIEDITS 52.6 An employee on leave-of-absence under sub-section 52.l(ii) of this Article may, at his option, have one-quarter (l/4) of a day deducted from his accumulated credits, (attendance, vacation or overtime credits) for each such day of absence and receive regular pay. 52.7 An employee who is absent from his duties due to sickness or injury beyond the total number of days provided for in section 52.1 of this Article shall have his accumulated attendance credits reduced by a number of days equal to such absence and he shall receive regular pay for that period. 52.8 Section 52.7 does notapply to an employee when he qualifies for and elects to receive benefits under the Long Term Income Protection Plan. -7- 52.9 "Where, for reasons of health, an employee is frequently absent or unable-to perform his duties, the Employer may require him to submit to a medical examination at the expense of the Employer. 52.10 After five (5) days' absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the Deputy Minister of the ministry, certifying that the employee is unable to attend to his official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the Deputy Minister or his designee may require an employee to submit a medical certificate for a period of absence of less than five (5) days. 52.11 Employees returning from L.T.I.P. to resume employment in accordance with Article 42.10 must complete twenty (20) consecutive working days of employment to qualify for benefits under the Short Term Sickness Plan. 52.12 For the purpose of this Article twenty (20) consecutive working days of employment shall not include vacation leave-of-absence or any leaves. without pay, but days worked before and after such leave shall be considered consecutive. Notwithstanding the above, where an employee is unable to attend to his duties due to sickness or injury, the days worked before and after such absence shall not be considered consecutive. ATTENDANCE REVIEW MEETINGS 52.13 Where an employee is interviewed by a member or members of management in respect of the employee's record of attendance at work, no evidence of that interview or of the particular aspects of the attendance record upon which that interview was based shall be admissible before the Grievance Settlement Board in the arbitration of a disciplinary grievance unless the employee was given reasonable notice of the interview and of the right to have union representation at that i -8- ' interview, and the employee either had such union representation or declined that representation in writing prior to the interview. In addition, the Employer relied upon the provisions of Article 21: ARTICLE 21 - NON-PYRAUIDING OF PRJMIUU PAYMENTS 21.1 There shall be no duplication or pyramiding of any premium payments or compensating leave provided by this Agreement. The Board was made aware that at the time the grievances were filed there was no one month requirement in Article 19.4. The language of 19.4 at all relevant times read as follows: Any compensating leave accumulated under sections 19.2 and 19.3 may be taken off at a time mutually agreed upon. Failing agreement, such time off may be taken in conjunction with the employee's vacation leave or regular day(s) off. (from January 1, 1986 Article 85.1 of unt 19.4 il December 31, 1988 amendment to Article the current two year Collective Agreement came into effect on makes it clear that the March 13, 1987. The Employer called two witnesses. Unit Supervisor, Brenda Onifrichyk, testified that the grievers' requests were denied because the lieu days selected were no longer scheduled.work days. Sprucedale Deputy Superintendent Randy Hosach gave evidence that, after a review of the Collective Agreement, he concluded that neither grievor was -9 - :. ._ entitled to the relief claimed. The narrow issue in this dispute does not appear to have been previously considered by the Grievance Settlement Board. The issue is whether or not the grievors are entitled to sick pay under Article 52 for days on which they were ill and which had been previously scheduled for compensating leave. The Union's first argument was that holiday benefits (Article 19) and sick pay benefits (Article 52) are separate and distinct entitlements. The thrust of the argument was that the mutual agreement to schedule lieu days under lP(4) did not convert those days into non-working days. Stated otherwise, the lieu days remained working days for which the grievors were entitled to sick pay benefits under Article 52. Mr. Bloom contended that the Board must characterise the reasons for absence as illness, and having so concluded, the ~grievors were entitled to sick pay for the entire period of absence. Further, Mr. Bloom argued that the entitlement to lieu days must not be defeated in the absence of language to that effect. The Employer argued that the matter did not involve a violation of the Collective Agreement and that the grievors had been properly compensated. Mr. Lee submitted that the grievors were not entitled to sick pay because once lieu days had been scheduled, the days were no longer work days. The Employer's position was that there - 10 - ., . . was no contractual obligation to reschedule lieu days, once designated. Finally, Mr. Lee contended that the grievors' claim would result in a pyramiding of prem ium payments specifically prohib ited by Article 21. A myriad of arbitral authority was submitted. The jurisprudence included numerous G.S.B. Decisions where holiday entitlement was claimed by employees scheduled to work a statutory holiday, but unable to do so for a variety of reasons. A recent Decision of Vice-Chairman Springate dated November 18, 1987 in OPSEU (Terrance Johnson) and Ministry of Correctional Services 693/85, reviewed the current state of the Board's jurisprudence at p. 3, 4 and 5: "In both Cooper 145/77 (Swan) and Martin 34/84 (Delislel, the Board concluded that an employee scheduled to work a holiday, but unable to do so on account of a non work-related injury, was entitled to be paid holiday pay for the day, and nothing more. The scheme of payment for holidays under the collective agreement was also discussed in Parsons 31/78 (Prichard). Subsequently, in Charbonneau 544/81 (Barton), the Board for the first time considered the entitlement of an employee scheduled to work a holiday but unable to do so as a result of being off on workers' compensation. The Board in that case reached a different result than had the Board in the previous cases dealing with an employee who was ill. In Charbonneau, the Board concluded that an employee off on workers' compensation who had been scheduled to work a holiday was entitled to receive both his regular salary for the day pursuant to Article 53.2, as well as an additional eight hours' pay, or compensating time off, pursuant to Article 19.2. - 11 - The employer applied for judicial review of the Charbonneau award. The employer relied, in part, on the fact that the Charbonneau award had not followed the reasoning adopted in previous Board awards dealing with employees who were ill but not on workers' compensation. The Divisional Court declined to grant the application for judicial review, reasoning that the award in Charbonneau was not patently unreasonable. On July 4, 1985, the Court endorsed its record as follows: We express no opinion on the correctness of the interpretation of articles 19 and 53 of the agreement given by the majority of the board of arbitration. We simply say that, in the light of what we were told was a different argument made before the Board, we see no necessity in this case, to resolve the * apparent controversy among arbitrators. Despite an extremely persuasive argument by Ms. McIntosh on behalf of the employer, we are not convinced that then interpretation found in the majority award is patently unreasonable.". In the Johnson Decision, the Vice-Chairman noted that Walberg et al., 259/84 (Delisle) followed.the reasoning of Charbonneau. For reasons of consistent interpretation of the Collective Agreement, Mr. Springate followed the Charbonneau rationale as he did in McDermid, 336/83. 0 - Of particular interest is Vice-Chairman Springate's reasoning in the McDermid Decision at p. 16: ” . ..we express no opinion as to whether the reasoning in Charbonneau should be applied to employees who are off work due to a non-compensable illness." - 12 - In the instant grievances, the Board is of the opinion that the grievors have submitted a more compelling claim to full recognition of lieu day entitlement than in Charbonneau, due to the fact that they actually worked the statutory holiday in order to earn the compensating leave. The Union's argument, we think, is persuasive. The Board accepts the submission that holiday pay and sick l pay are indeed separate and independent benefits negotiated by the parties. Holiday pay is an earned benefit Andy as such is part of the total wage package. The purpose of premium payment for work on a holiday was canvassed by Vice-Chairman Swinton in Bell and Ministry of Community and Social Services, 116/78 at p. 5: "premium payments for holiday work are designed to achieve the same purposes - to compensate the employee at a bonus rate for work performed on a holiday to which he is entitled by the collective agreement or by statute and to discourage the employer f~rom demanding such work unless necessary or important. The importance of the entitlement to statutory holidays is well described in Re Sealed Powe; Corp. of Canada Ltd. (19711, 2?- L.A.C. 371 at 373 (Shime) as fOllowS: Whatever the original social or religious reasons, certain statutory holidays are now a basic part of the Canadian industrial fabric and employees expect to receive the statutory holiday with payment or added compensation to their usual wage rate if they work on that day, 'while employers anticipate granting the statutory holiday or paying compensation in addition to the usual wage rate if they require their employees to work on those days . . ..In most cases certain statutory holidays have become so entrenched that an - 13 - 'employee will consider the day off with pay as a right rather than a privilege. The holiday is as an opportunity to engage in socials or religious activity without loss of income, but it is also viewed as an opportunity for relief from the~normal work pattern and its attendant pressures. In this collective agreement, the employer must not only compensate for a guaranteed number of hours for holiday work at premium rates, but must also provide compensating leave or equivalent pay for the day which would have been taken as compensating leave (Article 19.2)." On the other hand, the sick pay plan is to provide earnings 0 relief in periods of incapacity caused by illness or injury. Sick pay is in the nature of an indemnification for loss of earnings due to incapability to attend work due to illness or injury. Article 52 provides a short-term sick plan and authoriaes a leave-of-absence to employees unable to attend to duties due to sickness or injury. Such an employee is entitled to full salary for the first six working days of absence and thereafter for the next 124 working days of absence at 75% of regular salary. a Clearly, holiday pay and sick pay are benefits intended to serve quite different purposes. On the facts before us, both grievors did work statutory holidays. Accordingly, under 19.1 each grievor is entitled to receive double time at the basic hourly rate for all hours worked on the statutory holiday. In addition, each grievor is entitled to compensating leave or equivalent pay for the day which could have been - 14 - i’ ” “ taken as compensating leave. Both Lambert and Slaght elected to take compensating leave under Article 19.2 and lieu days were scheduled on a mutually agreeable basis under 19.4. Compensating leave is, of course, a negotiated benefit to enable an employee who has worked on a statutory holiday to take a day off at a later date. From the employee's standpoint, it is a day of leisure to compensate that employee for having worked the statutory holiday. Essentially, the issue which arises is one of fact as to the proper characterixation of the absences - whether or not the grievor Lambert was on compensating leave or sick leave on December 17 and 18, 1986, and the identical consideration for the grievor Slaght who was absent on January 31, 1987. The evidence before us established that Lambert was abg.ent from work from December 8, 1986 to December 31, 1986. Similarly, 0 Slaght was absent from work from January 20, 1987 to February 4, ~- 1987. In both cases, the grievors were absent for extended periods of time by reason of illness. In fact, neither grievor received the benefit of compensating leave. The fundamental reason for the grievors' absences from work on the days in question was a result of illness in Lambert's case and injury in Slaght's case, not compensating leave. Both grievors were - 15 - paid sick pay for days before and after the designated lieu days. Initially, both grievors were scheduled to work on the days in question. Had the lieu days been observed in the normal fashion, obviously they would have been non-working days. However, in these particular circumstances, the Board is satisfied that the days in question remained work days for which the grievors were entitled to benefits provided under Article 52. In that Article there is no exclusion of sick benefits for employees ill on compensating leave. 0 Similarly, there is no provision in the Collective Agreement to disentitle employees from applying one earned benefit rather than another. In our opinion, it is not for the employer alone to determine which earned benefit shall apply. The grievors make no claim for double benefits and accordingly, the prohibition against pyramiding in Article 21 has no application. Neither grievor sought duplicate premium payments. Compensating leave is a significant employee benefit which must not be denied in the absence of wording to the contrary in the Collective Agreement. To accept the Employer's position would in effect penalize the grievors on account of illness and injury. we would adopt the Union's contention that the grievors should not be placed in a worse position than they would have been in had compensating leave not been scheduled. - 16 - Therefore, the Board finds that the Employer did violate the provisions of Article 52 in deducting lieu credits and denying the request for sick leave pay for the date specified. In the result, all lieu credits improperly deducted from the respective employee bank shall be returned. Each grievor shall be credited with sick pay for the days in question. 0 DATED at TORONTO Ontario, this 15thday of : MARCH A.D., 1988. .A&&- A ,R.,L. VERITY, Q.C. - VICE-CHAIRMAN S. NICHOLSON - MEMBER "1 DISSENT'! (Dissent Attached) .- 2615/86 ? DISSENT I have read the award released on the above-noted case and regret that I cannot agree with the Decision handed down therein. The issue is, that compensating leave (lieu days), approved in advance by the Employer on dates requested by the employees, which proved subsequently to fall within a period of absence due to ill- ness, should be paid for as sick leave with pay and the lieu days credit should be returned to the lieu time bank for future use. There is no question that both grievorsearned entitlement to com- pensating leave (lieu days) by having worked on a statutory holiday. There is also no question that, having elected to exercise the compensating leave provision, both qrievors requested their lieu days on specific dates they had chosen. Both requests were approved by the employer and factored into the staff work schedule covering the period desired. To grant these requests for compensating leave on the dates specified by the grievors, other employees would have to be scheduled, in advance, to work those days so that the Employer could maintain required staff coverage at the institution. As is ~clearly stated in both the Collective Agreement and the Board award, the sole intent of the Short-Term Sickness Plan is to provide some income for a qualified employee for those days he or she is scheduled to work but cannot, due to illness or a non-compensable injuiry. Reference to the Statement of Agreed Facts listed in the award shows, under Item 10 for Mr. Lambert and Item 14 for Mr. Slaght, the nature of each day included in the total period of absence for each employee. ‘,‘,, < -2- I ^ 0 i, i These are: 1) days which were scheduled to have been worked but could not due to illness or injury; 2) days which were regular days off which were not scheduled to be worked; and, 3) the compensating lieu days which had previously been approved by the employer ,as requested by the grievors. l The qrievors were compensated (or not) for these days by virtue of their individual nature; that is they were paid sick pay for those days they missed from work due to illness or injury, but were not paid for.the regular days off on which they were not scheduled to work, even though they were sick on those days also. They were paid for the compensating leave days as such. I cannot accept the Union argument that mutual agreement to schedule lieu days under 19.4 did not convert these days into non-working days. The wording in 19.2 in my view is crysal clear; either take a day's pay at the appropriate rate or take a day off with pay. If they opt as the qrievors did for the day off, then clear-y it be- comes a non-working day. e To say that nothing in the Collective Agreement specifically excludes sick benefits for employees on compensating leave or disentitles them from applying one earned benefit rather than another, does not by some reverse logic give them the unfettered right to so claim sick pay benefits or transfer different benefits from one day to another. Such a presumption, I believe, could throw other provisions of the Collective Agreement open tochange and would be an alteration and extension of the terms of the Collective Agreement, (which is silent on those points) beyond the jurisdiction of this Board. To acknowledge and impart this freedom of choice and right to transfer which benefit was to be used by an employee would exceed by far the ordered terms of any Collective Agreement, in my view. The statements are made in the award that "holiday pay and sick pay are indeed separate and independent benefits" and "Clearfy,holiday pay and sick pay are benefits intended to serve quite different purposes". Accordingly, since compensating leave arises from Article 19, Holiday Pay, it should not be replaceablebysick leave pay under any circumstances. It is a basic tenet for the settlement of grievances that there be a breach of the Collective Agreement or the legislation governing the working relationship between the parties. No Board of arbitration should impose a settlement of any complaint that does not fall clearly and unequivocally within these parameters. In this case, I can find no such breach. The Collective Agreement is clear on the establishment of entitlement for, and the application of, compensating leave. It is equally clear on the purpose and the utilization of sick leave with pay under @ the Short Term Sickness Plan. Neither party Co the agreement should be free to substitute one of these benefits for the other, or to apply to any day the conditions pertaining specifically to either benefit unless that day qualifies by falling within the provisions for that benefit as set out in the Collective Agreement. To emphasise this contention that, absent specific supportive wording in a Collective Agreement no one type of benefit can be substituted for another, reference is made to the following earlier G.S.B. awards. l - 86/76 (D. Fournier) Ministry of Health - D.M. Beatty Bereavementoccurred during a period of annual vacation. 425/82 (J.L. Heath) Ministry of Health - P.M. Draper I Substituting sick leave for vacation. 730/83 (R.J. Pullano) Ministry of Correctional Services - E.B. Jolliffe Bereavement leave on a statutory holiday. From all of the above, it would be my position, with respect,that there was no breach of the Collective Agreement which is silent on the matter of substituting one benefit for another; sick pay and compensating leave were properly allocated within the terms of the Collective Agreement governing each: and therefore the grievance should be dismissed.