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HomeMy WebLinkAbout1987-1247.Howolka.90-03-16EMPLOY~SDE LA COURONNE DE ÔÇťONTARIO COMMISSION DE RkGLEMENT DES GRIEFS BETWEEN: BEFORE: FOR THE GRIEVOR: FOR TEE ENPLOYER: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD HEARING : OPSEU (Howolka) Grievor - and - . The Crown in Right of Ontario (Ministry of Community & Social Services)" Employer T.H. Wilson Vice-Chairperson S. Urbain Member F. Gallop Member P. Chapman Counsel Ryder, Whitaker, Wright and Chapman Barristers & Solicitors D. Milic Employee Relations Officers Ministry of Community & Social Services December 9, 1988 2 DECISION The grievor grieves that while on Workers' Compensation, two statutory holidays (April 17, 1987 Good Friday and April 20, 1987 Easter Monday) were taken away from her. The hearing proceeded on an agreed statement of facts as follows: 1. The grievor is employed at the Northwestern Regional Centre as a Residential Counsellor II and has been employed by the Ministry since June 24, 1974. 2. As a result of an injury thee grievor was off work and received Workers' Compensation from March 24, 1987 until April 24, 1987 inclusive. 3. Had the grievor actually worked during the period for which she was absent due to her injury her regular work days would have included April 17, 1987 (Good Friday) and April 20, 1987 (Easter Monday). 4. The only issue remaining is the application of section 19.1 of-the Collective Agreement in Article 19 as all other matters have been resolved between the parties. Article 19 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 3 I worked with a minimum credit of seven and one-quarter (7 l/4), eisht (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 rate 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. 19.3 When a holiday included under Article 48 (Holidays) coincides with an employee's scheduled day of~f and he does not work on that day, the employee shall be entitled to receive another day off. [rest of Article 19 omitted] Article 54 - WORKERS:' COMPENSATION 54.1 When 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 section 52.1 and 52.6 of Article 52 (Short Term Sickness Plan) shall be an amount owing by the employee to the Employer. 54.2 Where an employee is absent by reason of an injury or an industrial disease for which an award is made under The Workers' Compensation Act, his salary shall continue to be paid for a period not exceeding three (3) consecutive months or a total of sixty-five (65) working days where such absences are intermittent, following the date of the first absence because of the injury or industrial disease and any absence in respect of the injury or industrial disease shall not be charged against his credits. 54.3 Where an award is made under The Workers' Compensation Act to an employee that is less than the regular salary of the employee and the award applies for longer than the period set out in section 54.2 and the employee has accumulated credits, his regular salary may be paid and the difference between the regular salary paid after the period set out in section 54.2 and the compensation awarded shall be converted to its equivalent time and deducted from his accumulated credits. I 3 4 The Grievance Settlement Board dealt with a similar fact situation in the earlier decision Charbonneau and Ministry of Correctional Services G.S.B. 544/81 decided June 22, 1982 by a panel chaired by P.G. Barton. In that case, the grievor on April 7, 1981 was off work on Workers' Compensation pursuant to <hen Section 53.1 (now 54.1) from April 8 to April 26, 1981. He would have been scheduled for work during that period for Good Friday April 17'and Easter Monday April 20 had he not been injured. The employer allocated eight hours pay for each of those two days. The grievor had signed a document prior to that indicating that he wanted time off rather than cash for those days. The Ministry ,had a written p.olicy that the employee in such a situation was deemed to have taken the holiday on the day it occurred and not a lieu day. The Union argued that in this situation the Grievor was entitled to the W.C.B. benefits under section 53.4 and pay under section 19.2 or lieu days which is what he was claiming. 1. 2. 3. The Board in Charbonneau concluded: Article 21 (Non-pyramiding of premium payments) did not apply. Section 19.1 does not apply because the Grievor did not work on the day in question. The Grievor was entitled to his regular salary under Article 53. 5 4. The Grievor was entitled to eight hours pay ora lieu day under section 19.2. 5. Because the Grievor had indicated in advance that he wished the lieu days, he was entitled to those days and the grievance was allowed, the Employer being directed to grant him those days. The Union challenges the correctness of the Charbonneau decision claiming that it is internally inconsistent; namely the employee who due to injury does not work on the particular date but is scheduled to work is not treated the same way as his fellow employee-who does work. The Union referred the Board to Martin and Ministry of Correctional Services G.S.B. 434/81. The majority in the decision written by vice-chair Delisle dismissed the grievance. The facts were that the grievor was scheduled to work on April 20, 1981, an Easter Monday but due to illness was off work. This fell under Article 51 (now 52) SHORT TERM SICKNESS PLAN. The Employer actually paid the Grievor eight hours holiday pay pursuant to section 19.2. The grievor claimed in addition entitlement to eight hours at one and one-half times his usual salary under section 19.1. The majority held that the benefit for premium pay on a holiday is not triggered by the scheduling of the work but by the actual performance of the work. They also held that Article 21 applied. 6 H.L. Robinson wr0te.a dissent which the Union claims is correct. In his opinion, the Grievor's regular salary unquestionably included the eight hours pay at time and one-half which he in fact received when he worked on statutory holidays. Then in his view his regular salary "must include the pay he would have received for April 20 had he worked, since on .that day he was regularly scheduled to work but was unable to do so by reason of sickness." He saw the question as being what would his regular salary have been if he had worked on the holiday, and - what was he subsequently entitled to under section 51.1 (now 52.1) and that the only function of section 19.1 in such a case was that it served to determine what the grievor's regular salary would have been had he worked on April 20 and to which he would therefore be entitled to under section 51.1 (now 52.1). After reviewing the sections and various previous decisions, he concluded at page 12: 1. Article 21 was not relevant. 2. The majority decision in Cooper and Ministry of Community and Social Services G.S.B. 145/77 was in error because of its misapplication of the decision in Bell and Ministry of Community and Social Services G.S.B. 116/78. 3. 4. The Union further referred this Board to the decision in 7 Section 51.1 (now 52.1) is the key article to be considered, not section 19.1. A proper reading of the relevant articles supported the grievor's claim. McDermid and Ministry of Correction Services G.S.B. 366/83. 1n that case, the issue was entitlement of an employee off work on workers' compensation to be paid for a holiday and/or to subsequently receive compensating paid leave. In McDermid, Vice- chair Springate stated that there were four possible approaches: 1. Section 53.2 (now 54.2) creates an entitlement to payment for the two holidays the grievor did not work, but reference must be had to Article 19 to determine the amount of payment. Because the grievor did not work on the days .in question, section 19.1 had no application. Section 19.2, however, applies both to employees who work and those who do not work a holiday, and accordingly is applicable. Pursuant to section 19.2, the grievor is entitled to payment for both days at straight time or time off. This approach is consistent with the reasoning in the Martin award. 2. Section 53.2 entitles the grievor to his regular salary for the two days in question the amount of payment being determined by reference to Article 19. However, itis to be calculated on the basis of what the grievor would have received had he actually worked the day in question. Had he worked the two holidays, he would have been entitled to eight hours' pay at double time under section 19.1 as well as an additional eight hours' pay under Section 19.2, or compensating leave with pay, i.e. the approach of Robinson in his dissent in the Martin case. 3. Only section 53.2 applies and the employee is entitled to be paid for the holiday on the same basis as if he had actually taken the holiday on the day it occurred. 8 This was in line with members Middleton's dissent in O.P.S.E.U.(E. Charbonneau and Ministry of Correctional Services (G.S.B. File 544/81). 4. The grievor is entitled to his regular salary under section 53.2. He is also entitled to eight hours pay or compensating leave under section 19.2. Since 19.1 applies only to an employee who works a holiday, it has no application. This was the reasoning adopted by the majority in Charbonneau. Vice-chair Springate concluded that none of these four positions were unreasonable given the lack of clarity in the language. The same he wrote was true of the role of the anti- pyramiding provision of Article 21: There shall be no duplication or pyramiding of any premium payments or compensating leave provided by this Agreement. In the interests of a uniform approach to the issue before it, the Board decided to follow the reasoning of the majority in the Charbonneau case. It left open the question of whether the reasoning in Charbonneau applied to employees off work due to, a non-compensable illness. The result was that it decided that under section 53.2 (now 54.2) the grievor was entitled to be paid his regular salary for the two days in question. He was also entitled to an additional eight hours' pay for each day or compensating leave under section 19.2. Since the grievor had been paid only for eight hours at straight time, he was held entitled to receive the difference. The union argued that the reasoning in McDermid supports its 9 position that Charbonneau did not go far enough. The issue in McDermid was section 19.2 not 19.1. Of course it is important to note that it is Martin that held that to be entitled under section 19.1 the employee must actually work. Charbonneau was actually concerned with section 19.2 but stated that the majority position on section 19.1 in Martin in interrelating with then section 51.1 (now 52.1) was applicable in interrelationship with section 53.2 (now 54.2). In Majury and Ministry of Community and Social Services, G.S.B:1292/87 the Board was called upon to apply the Article II shift premium provision to the workers' compensation situation under Article 54. The Board in that case chaired by this vice- chair held at page 8-9: ,, . . . It is no doubt clear that the Collective Agreement is not a seamless robe. However, it is our duty to find as much consistency as is possible while trying to identify the purpose or intent of the parties. Clearly there are parallels between Article 52 and Article 54. The parallels between Article 11 and 19 are also noticeable. If we applied the reasoning in Charbonneau and Cooper to this case, clearly the shift premium would not be included inasmuch as Section li.1 like 19.1 requires that the hours must have actually been worked. The union contended that the purpose of Article 54 is to maintain the de facto income of the injured employee. I do not see the interrelationship of Article 54 and Article 11 as doing that. Article 54 maintains the salary which the job itself pays. Under Article 11.1 the employee is paid a "premium" when he actually works during the hours specified therein. That is completely parallel to 19.1. In my view the reasoning in Charbonneau is correct and applies equally here. Furthermore, the cases actually cited by the :- 10 employer defining salary and discussed above are I believe consistent with that approach. The basic hourly rate is one of the components of salary and it according to section 11.3 does not include shift premium. That the parties sought to maintain the basic salary of the employee appears to be the intention as reflected by both the language and structure of the relevant provisions and as appears from the reasoning in the Board decisions. The grievance is dismissed." Therefore in both section 19.1 and section 11.1 this Board has interpreted the words "worked (11.1) and "works" (19.1) to mean that to get the benefit of the provision the employee must actually work or be available to work. This dates back as far as Cooper and Ministry of Community G.S.B. 145/77 in which Vice- chair Swan stated at page 7: 11 Nevertheless, we are of the view that the guaranteed credit in clause 19.1 must be understood to be subject to the employee's continuing availability for work." The Board has repeatedly reaffirmed that interpretation including this Vice-chair in Majury. I continue to be convinced that it is correct. But even if I were convinced of its wrongness, I would then have to meet the Board's view in Blake declared that interpretations extraordinary c it should not depart from its own previous of the Collective Agreement unless there are ircumstances. Many other decisions were cited by and Amalqamated Transit Workers G.S.B.1276/87 in which the Board the Ministry in our case following the interpretation of section 19.1 which was affirmed by me in Majury. There can be no reason for now altering this Board's decisions. Only actual changes in the wording of the Collective Agreement can now produce a 11 different result. This grievance is dismissed. Dated at Toronto this 16thday of March~ , 1990 / ;J h&5& Thomas H. Wilson, Vice-Chair S. Urbain, Member c/3Gi4m~. - F. R. Gallop, Member