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HomeMy WebLinkAbout1987-2456.Ewart.88-12-02_i -:, l l ONT*RIO EMPLOY~S DELA CO”RONNE CROWN EMPLOYEES DEL’ONTARIO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEIJ (Joan Ewart) and The Crown in Right of Ontario (Ministry of Health) J.W. Samuels Vice-Chairperson J.D. McManus Member A. Merritt Member C.V. Hofley Counsel Gowling & Henderson Barristers and Solicitors M. Quick Counsel Legal Services Branch Ministry of Health November 15, 1988 2456/87 Grievor Employer 2 The grievor claims that she was wrongfully denied leave of absence with pay pursuant to the short term sickness plan established in Article 52.1 of the collective agreement. The claim arises out of events in August and early September 1987. The grievor is a Cleaner 2 at the Kingston Psychiatric Hospital. She began a scheduled three-week vacation on August 17. Her plan was to go to a cottage for two weeks of this vacation. Before leaving for vacation, the grievor was experiencing some redness and pain in her foot, around the area she had surgery in the spring of 1987. On August 19, she went to see her doctor. Now her doctor told her that her foot was infected, that she could not work, that she must soak her foot three to four times per day, and that she would have to see him again in two to three days. In fact, she saw her doctor again on August 25,26 and 28, September 1,4, and 7. She did not return to work as scheduled on September 4, but was off on sick leave until September 17. Thereafter, for a month or so, she had light duties. On August 24, the grievor called the Hospital and spoke to her supervisor, Marion Pettifer. She told the supervisor that, because of her condition, she wanted to change the vacation into sick leave. Several days later, Ms. Pettifer responded that this could not be done. Hence, the grievance was filed. There is no doubt that the grievor was not in fit condition to work from August 19 to September 17. Her doctor provided certificates to this effect, and they were not challenged. The issue is whether the Hospital ought to consider the period August 19 to September 4 as sick leave, rather than vacation. Article 52. I provides: 52.1 An employee who is unable lo attend to his duties due lo sickness or injury is entitled lo leave-of- / absence wifh pay as follows: 3 [ii) witbseventy-fivepercent(75%)olregUlarSala~ for an additional one hundred and bVenlY-fOUr (124) working days of absence. in each calendar yf!ar. The essential requirement for entitlement to sick leave is that the employee “is unable to attend to his duties due to sickness”. Article 52.1 does not say that the employee must be actively at work in order to claim sick leave, only that the employee is unable to work. This is distinguishable from leaves which can only be taken if the employee is actively at work. For example, in this collective agreement, Article 49.1 provides for bereavement leave for an employee “who would otherwise have been at work’. Article 52.1 is different. It focuses instead on the medical condition of the employee. In Re International Union of Operating Engineers, Local 796, and Molson’s Brewery (Ontario) Ltd. (1967), 18 LAC 213 (Hanrahan), an employee was injured in an accident during his vacation and the learned arbitrator ruled that he was not allowed insurance for the period between the accident and his return to work, nor was he entitled to additional vacation time, “because the collective agreement required the employee to be actively at work when the disability commenced, in order to be eligible for compensation”. In our case, the collective agreement does not require the employee to be actively at work in order to.claim sick leave benefits. Indeed, management itself has recognized that sick leave benefits are payable though ilIness arises during a vacation. In the Manual qf Corporate Policy and Procedure, it is provided that an employee who has been hospitalized during a scheduled vacation may upon return to work submit a medical certificate confirming the period of hospitalization and then can be covered for the period of hospitalization under Article 52.1 (at page 3, number 3-2-15). Though this Manual is not part of the collective agreement and is not binding on the parties, it does show that management itself understands that sick leave benefits are payable though the illness 4 arises during a scheduled vacation. Our comment would be---why should it matter whether the employee is hospitalized or sick at home? In either event, the employee is “unable to attend to his duties due to sickness”. Article 52.1 makes no distinction between sickness which requires hospitalization and sickness which does not require hospitalization. The grievor was unable to attend to her duties due to sickness from August 19 to September 4. Though she was on scheduled vacation, when she realized the seriousness of her problem and the impact it would have on her vacation, she made a reasonable effort to cancel her scheduled vacation by phoning her supervisor on August 24. In our view, this is critical to her case. A vacation is intended for recreation and relaxation. It is of benefit both to the employee and the employer. It is in both their interests that the employee get the repose provided for in the collective agreement so that the employee can return to work refreshed and more productive. It is for this reason that arbitrators have held that, in certain circumstances, a vacation period can be interrupted for a leave of absence unless the collective agreement says otherwise. For example, in Re Government of the Province of Alberta and Alberta Union of Provincial Employees (1984), 16 LAC (3d) 142 (Jolliffe), the learned arbitrator held that the employee was entitled to a bereavement leave during vacation, and to additional vacation days to make up for the days taken as bereavement leave. At page 146, the arbitrator says: The often quoted and perhaps axiomatic remarks of arbitrator Johnston in Re Dominion Glass Co. Lfd., as hereinbefore repeated, that bereavement leave is meant to provide an employee with time off to assist in making arrangement-s for the funeral, etc., it seems to me, opens up a compelling parallel argument; namely, that an individual in the middle of earned vacation leave who is met with a personal tragedy and thereafter has to embark upon a period of comfort and assistance ,to relatives in making arrangements for the funeral of the deceased and for the immediate care and after-care of the deceased’s survivors, should not have that family imperative included in part of his regular earned vacation time, intended as a normal annual period for recreation and relaxation. 5 Vacation scheduling at this Hospital is done very flexibly. By and large, employees in the grievor’s department can take vacation when they wish, provided that patient care is not prejudiced in any way. Management has been very good about this. In the grievor’s situation, there would have been no prejudice whatsoever to the employer if the grievor had been allowed to end her scheduled vacation in August 1987, and had been given the opportunity to reschedule her vacation at a later time when it was not inconvenient for management. Ms. P. Kernick, another Cleaner in the grievor’s department, testified that once an employee was hospitalized during a scheduled vacation and was allowed to cancel the vacation. In all the circumstances of this case, we find that the grievor was entitled to leave of absence with pay pursuant to Article 52.1 for the period August 19 to September 4. All necessary financial adjustments should now be made to put the grievor in the financial position she would have been in had this period been considered as sick leave from the outset. Furthermore, because this period is now considered to have been sick leave, the grievor is entitled to additional vacation time to make up for her lost vacation. 6 We will remain seized to deal with any matter concerning these orders which the parties are unable to resolve themselves. Done at London, Ontario, this 2nd day of December, 1988. ; $,) Jhw-4 A. Merritt, Memb?x