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HomeMy WebLinkAbout1987-1815.Mandar.88-07-20EMPLOY& DE LA CO”RONNE OEL’ONTAR,O CQMMISSION DE REGLEMENT DES GRIEFS Between: 1815/87 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPiOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (H. Mandar) Grievor - - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: For the Grievor: G.J. Brandt Vice Chairman J. McManus Member C. Linton Member R. Ross Wells Counsel Gowling & Henderson Barristers and Solicitors For the Employer: J.F. Benedict Manager Staff Relations and Compensation Ministry of Correctional Services Hearing: April 18, 1988 DECISIOIJ- This grievance claims that the employer vi0 lated the collective agreement by “denying me the accumulation of eight hours of lieu time credits for the holiday on August 3, 1987." 2 The specific relief requested is “that an adjustment be made to my accumulated lieu time credits and my attendance credits, that eight hours be added to my lieu time credits and that eight hours be deducted from my attendance credits.” The facts are not in dispute and may be summarized as follows. The grievor is employed as a Correctional Officer at the Metro West Detention Centre. He was scheduled to work an 8 hour shift on August 3, 1987, which is one of the holi in Article-,-~48 of the collective agreement. certainmedical problems he was hospitalised for days referred to As a result of the period from August 1 to August 9, 1987 and was, consequently, unable to work his scheduled shift on the holiday. He was paid eight hours pay at straight time. There is some dispute between the parties as to the basis upon which that payment was made. The Union takes the position that it was made pursuant to Article 19.2 of the agreement. The Employer takes the position that Article 19.2 has no application in the case where an employee does not actually work on the scheduled holiday. In view of the result in this case it is.unnecessary to deal with this issue. It is sufficient to note that in the cases which have come before the Board on the application of the holiday pay provisions it has generally been assumed that payment 3 of holiday pay for employees not scheduled to work derives from Article 19.2. The only exception to that is Rw 730/83 where the Board reasoned that, since Article 19.1 clearly applies only where employees actually work the holiday, and since Article 19.2 begins with the words “in addition to the payment provided by section 19.1. .I’, it must follow that an employee cannot qualify under Article 19.2 unless and until he or she has qualified under Article 19.1. It is unnecessary for us to address this question since there is no dispute here as to whether the grievor was entitled to the holiday pay which he received. Rather the dispute is whether or not, in addition to that holiday pay, he ought also to have been given the benefits provided for under the short term sickness benefit plan in Arti.cle 52. Article 52 provides that - - “an employee who is unable to attend to his duties due to sickness or injury is entitled to leave of absence with pay for the first six (6) working days of . ..with regular salary absence. ‘* Since August 3rd fe the Art art for 11 within the first six worklng days of grievor’s absence commencing on August 1st it is claimed that cle 52 applled and that he should be compensated under that cle in addltion to his entitlement to the benefits provided under Article 19. The issue of the entitlement of an employee to both holiday payment under Article 19 and benefits under the sickness plan or benefits payable as a result of a compensable accident has arisen . 4 5 in a number of other cases before the Board. Thus, the issue as to whether or not an employee may claim hoiiday payment under Article 19 in circumstances where he or she is unable to work as scheduled for reasons of illness has come before the Board in the following cases. (CooDer, 145/77, Martin, 434/81, Robertscn, 641/85, and Berasma, 126/86 I A similar issue has arisen in situations where the employee is unable to work the scheduled holiday because of a compensable accident. (Cm, 544/81, -4, 366/83, and Walberq, 704/85) The problem which arises in these cases is that the Board has reached different conclusions depending on whether or not the inability to work th.e scheduled holiday derives from an illness or from a compensable accident. In the “illness” cases, the Board has -held that an employee who is scheduled to work the holidaybut does not actually work it is entitled only to the holiday pay under Article 19.2 and no more. In the “accident” cases the Board has treated the holiday pay provisions and the benefits provided under Article 54 in respect of Workers’ Compensation as independent of each other such that they may be enjoyed simultaneously. Counsel for the Union argues taken by the Board in these two lines and irreconcileable. Specifically that the different approach of cases is both irrational t is claimed that, while a distinction may legitimately be maintained between employees who work the holiday and those who do not, a distinction which it is submitted is reflected in Articles 19.1 and 19.2 respectively, a further distinction between employees who do not work the holiday for reasons of illness and for reasons of accident, cannot be defended. Thus, it is claimed that no intelligent distinction can be drawn between the employee who, for example, sprains an ankle at work and is unable to work a scheduled holiday, and the employee who sprains an ankle at home and is equally disabled from working the holiday. In short, it was submitted that this Board should reconcile these two lines of cases by applying the wbonneu line of cases to the situation of an inability to work a scheduled holiday for reasons of illness and to treat the Martin line of cases as w_rongly decided. In reviewing the earlier lVillness” line of cases It is clear - ._ that they.do not expressly address the issue which has been brought before this panel. In both Martin and in COODer the I claim was for holiday payment under Article 19.1 in addition to that which was paid the grievor under Article 19.2. In both cases the claim was dismissed for the reason that, in order to qualify under Article 19.1, i t was necessary for the employee to “work” the holiday. Thus, nei ther of those cases really addresses the claim which is made here, viz, that there is an entitlement to the sickness benefit over an 19.2 However, in the later “1 above the holiday pay under Article llness” cases, Bobertson and Berasma the claim made was for payment under the sick leave provisions. Furthermore, they are cases which, unlike Martin and Coooer, were 6 decided after the decision of the Board in Charbonneau and McDermid and which therefore had an opportunity to consider the application of that line of cases to the situation of an employee unable to work a scheduled holiday for reasons of illness. Indeed the panel in Robertson was chaired by the same vice chairman as that which had earlier decided ~&E?L&&. In each . of Robertson and E!~JIEL the Board considered the anomaly created by the two lines of cases. Yet in neither case was the Board prepared to correct that anomaly. As the Board stated’ in Robertson ” . . ..We recognize 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 work on workers! compensation or because of a non, work-related illness. This result; 3wwever; flpws from the fact that the Board, when dealing with 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.” Similarly, in w the Board, after reviewing the cases stated : n . ..At first blush there seems to be a difference in which the older cases (especially -1 and the newer cases (wonneau have decided the issue. . ..However. nartin and Charbonneau are not irreconcileable as long as Cbarbonneau is limited to W.C.B. cases. For non-WCB cases, the principles in partin should still apply in that the arguments made by the Union in this case mirror their arguments in &&ln. These arguments were rejected in Martin, and for the purpose of maintaining certainty in the field of labour relations, nartin should be followed. ?- ; 7 We agree with counsel for the union that there is no rational basis upon which the distinction in the two ,lines of cases can be maintained. However, we are also unpersuaded that the approach taken by the “illness” cases is manifestly wrong and should therefore be overruled. The Board has frequently stated that, in the interests of promoting certainty and guidance to the parties in the administration of the collective agreement, it ought not to depart from its earlier decisions, except where they are “manifestly wrong”. A similar attempt was made by the employer in McDermiP to persuade the Board to overrule its decision in charbonneau. The Board declined, stating that the fact that the Board had reached a different interpretation of the collective agreement in the “illness” _~i cases was not by itself a suf f ici,ent basis for - - concluding that its decision in B was manifestly wrong. Rather the Board stated that, given the lack of clarity in the collective agreement, the issue was such that the Board could give the agreement different, yet reasonable interpretations and that, considering that the Board in Charbonneau had dealt with the very issue before it in mermid., it would be unwise for the Board to reach a different conclusion than that reached in the earlier case. In the case at bar there are two prior decisions, IQ&&G&D and Rerasma, 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 8 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 are we reluctant to overrule Bobertson and BerclSma. 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. 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. Consequently, we regard the matter before us to be disposed of in the sFme manner as the Board has dealt with this issue in &&rt&n ax in pe:rasma. In the result the grievance is dismissed. Dated at LONDON, Ont. this 20th day of JU~V . 1988 G. J. Brandt, Vice Chair kr, @wAQ. -Attached) J. McManus,~Member I c. Ikton, Member ADDENDUM 1815/87 I have read the final award in this matter and I have concurred with the majority, but with a certain amount of reluctance, after having read the dissent of Mr. L. Robinson in Martin 434/81 (Delisle) I find myself with a great deal of sympathy ------- with the argument proposed therein. My concurrance, therefore, is basd soley on the past practice of the board of not departing from earlier decisions except when they are "manifestly" wrong. Vice Chairman Brandt at page 8 states "as noted above we agree the the result is anomalous, however, the remedy to correct that anomaly must lie with the parties." ---_------~~-----~-~~----- Also Bergsma__;l26/86 Vice Chairman Fisher notes "there comes a point-in l&gating an issue when enough is enough". I believe this could apply to this line of cases, perhaps as suggested above the remedy lies with the parties, at the ------ bargaining table, that to me is where this inconsistancy --- ------------ should be addressed and a final solution found. J.D. MCManus -