HomeMy WebLinkAbout1993-1201.Hammond.95-11-09 Decision ONTARIO EMPLOYES DE LA COURONNE
CROWNEMPLOYEES DEL'ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
EMBOARD DES GRIEFS
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GSB # 1201/93
OPSEU # 93GO02
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Hammond)
Grievor
and
The Crown in Right of Ontario
(Ministry of Health)
Thames Valley Ambulance
Employer
BEFORE S. Kaufman Vice-chairperson
FOR THE A. Lee
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE P. Whalen
EMPLOYER Barrister & Solicitor
HEARING May 11, 1995
June 16, 22, 1995
1
DECISION
Lynda Hammond, an Ambulance officer with Thames Valley
Ambulance in London, Ontario grieved on June 16, 1993 that
she was denied a full-time contract to replace Erica Daudlin
while Ms. Daudlin was on maternity leave, and that the denial
was contrary to Article 12 of the local 1990-91 Memorandum of
Settlement. She requested appointment to a full-time con-
tract as Ms . Daudlin' s replacement or credit for seniority
and compensation for lost earnings as of the date of Ms.
Daudlin' s maternity leave.
The Evidence:
A collective agreement between Thames Valley Ambulance
Limited and OPSEU and its Local #106 in effect April 1, 1988
to March 31, 1989 (Ex. 1 ) contains the following under its
Leave of Absence provisions:
12.03 In considering written requests for leave
of absence, or extension thereof, the
Company shall consult with the Union.
12.06 The Company agrees that in all cases
where an employee is granted leave of
absence without pay for a period
exceeding four weeks, that the position
will be filled by a temporary full-time
posting.
That agreement expired on March 31, 1989.
A copy of a signed Memorandum of Agreement between
Thames Valley Ambulance Services and OPSEU and its Local 106
dated March 21, 1989 (Ex. 5) states that all Articles of the
Collective Agreement "shall apply to employees covered by
this Agreement" "unless otherwise specified in this Agree-
ment" and that it would be in effect from April 2, 1989 until
March 31, 1990.
An unsigned copy of a local Memorandum of Settlement
dated February 14, 1991 (Ex. 2 ) was provided in evidence.
The parties agreed that it had been siy::ed and was in effect
2
at the time of the events that gave rise to this ( .spute. It
appears to have succeeded the March 21, 1989 Memorandum.
The February 14, 1991 Memorandum (Ex. 2 ) stat.as in part:
1. The provisions of the prior collective agree-
ment, if any, shall be continued except as modified
herein in Schedule "A" .
2 . The provisions of the memorandum of settle-
ment concerning central issues is attached and
forms a part hereof.
Schedule A in that Memorandum contains the following Articles
referred to in Ms. Hammond' s grievance:
12.03 Where the company has granted a leave-of-
absence in excess of one ( 1 ) week, under
Article 12, Article 13 or Article 38 of
this Agreement, the position may be
filled by temporarily appointing the
most senior part-time employee to fill
the full-time position for the duration
of the leave.
12.06 The company agrees that in all cases
where an employee is granted leave of
absence without pay for a period exceed-
ing four weeks, that the position will be
filled by a temporary full-time posting.
Art. 12.06 in the February 14, 1991 local Memorandum is
the same as Art. 12.06 of the Collective Agreement.
It was not in dispute that Erica Daudlin was absent and
on Workers ' Compensation benefits from December 28, 1992 to
June 1, 1993, at which time she commenced a maternity leave
to December of 1993, the employer assigned various part-time
employees to fill her shifts and in June of 1993 Ms. Hammond
was at the top of the part-time seniority list.
Ms. Hammond's evidence was that between 1989 and 1993
she had done a number of temporary full-time contracts repla-
cing other employees then on leave of absence and receiving
long-term disability or Workers ' Compensation benefits. Dur-
ing that period she may have unknowingly been assigned to the
shifts of absent full-time employees on an open-shift basis.
Schedules are posted 2 weeks in advance, but at times staff
are assigned to shifts on 2 days ' notice. She inquired about
3
Erica Daudlin' s vacancy, possibly to Jack Mercer, probably in
February of 1993, while Ms . Daudlin was off work on Workers '
Compensation benefits. She did not grieve after Mr. Mercer
did not assign her to Ms. Daudlin' s schedule or any time
thereafter until June, 1993 when Ms. Daudlin was on maternity
leave. She recalled having spoken to Chris Ferris around the
time she spoke with Mr. Mercer and recalled Mr. Ferris having
told her that ongoing negotiations were dealing with the
wording. She said that the union told her not to grieve at
that time.
Chris Ferris is a full-time ambulance attendant who has
held a number of union roles including Chair of the Health
and Safety Committee, Shop Steward, Unit Steward, Unit Chair,
Local President, Regional Director of OPSEU Ambulance for his
region for 2 years, and 3 terms on the local negotiating com-
mittee. He was on the team which negotiated the local Memo-
randum of Settlement dated February 14, 1991 containing Art.
12.03 and 12.06 and attended all except the last two meet-
ings. Art. 12.03 was the union' s proposal. Until the 1991
Memorandum of Settlement was signed, the employer was not
obliged to fill vacancies caused by the absences of full-time
employees unless the absences were longer than 4 weeks. The
union's 1991 proposal was an attempt to expand the situations
where part-time employees would be "drawn onto full-time con-
tracts" . When the vacancy was over 4 weeks in duration, the
employer "was filling the positions by contract" . There is
no paid leave of absence. Absences due to work-related inju-
ry, non-work-related sickness or accident, personal, educat-
ional, and maternity leave were filled by "temporary full-
time contracts" . After the Knopf award, the employer "ceased
full-time contracts except in the case of personal leave of
absence" . The parties agreed that the Knopf award (Ex. 7 ) is
dated July 1, 1992.
Mr. Ferris reviewed the union's proposals regarding the
replacement of employees on leave of absence. In the 1989-90
round of contract negotiations, the union proposed:
4
Art. 12 : Provide for temporary full-time posting
to cover all leaves without pay exceeding
two weeks. ,
and the parties ultimately agreed to the following:
12 .03 Where the company has granted a leave-of-
absence in excess of one ( 1 ) week, under
Article 12, Article 13 or Article 38 of
this Agreement, the position may be
filled by temporarily appointing the
most senior part-time employee to fill
the full-time position for the duration
of- the leave.
The 1989-1990 round of negotations resulted in the February
14, 1991 local Memorandum of Settlement (Ex. 2 ) . The em-
ployer resisted the word "shall" and maintained it wanted
discretion as to whether there would be a temporary posting
for 1 to 4 week vacancies.
During the 1990-1991 round of negotiations, the union
proposed to change the word "may" in Art. 12.03 to "shall" .
In one proposal it sought to add STD and WCB to Art. 12.06,
and in a second proposal, it sought to add wording regarding
pay administration to Art. 12.06. The wording of both 12 .03
and 12.06 remained the same at the end of the 1990-1991 round
of negotiations. `
In the 1991-1992 round of negotiations, the union pro-
posed a new Article 4.05:
The most senior and available part-time employee
will be placed on a full-time contract position to
cover any full-time position open due to W.C.B. ,
S.T.D. , L.O.A. , maternity leave or an approved
union leave, provided. That the said opened posi-
tion exceeds a period of four (4 ) weeks. Normal
wage and benefit provisions will apply.
The union' s intention was to move the issue from Art. 12 to
Art 4 which deals with postings. Art. 4.05 was intended to
replace Art. 12.03 and 12.06. The union also proposed to
delete and renumber certain clauses in Art. 12. Its propo-
sals were denied in the July 1, 1992 Knopf award (Ex. 7 ) ,
5
which set the terms of the central agreement for the period
January 1, 1992 to December 31, 1993.
In the 93/94/95 round of negotiations the union proposed
the following new Art. 4.05:
The most senior and available part-time employee
will be placed on a full-time contract position to
cover any full-time position open due to W.C.B. ,
S.T.D. , L.O.A. , Pregnancy or Parental Leave or an
approved union leave provided that the said opened
position exceeds a period of four (4 ) weeks. Nor-
mal wage and benefit provisions will apply.
This proposal was dealt with in the second Knopf award, dated
March 6, 1995 (Ex. 14) covering the period from January 1,
1994 to April, 1996. Mr. Ferris acknowledged in cross-exami-
nation that local negotiations for the January 1, 1994 to
April 1996 agreement may not have begun before January 10,
1995 and that the union did not submit its demands to the
employer for that agreement before January 10, 1995, which
included the above proposal.
In cross-examination, when asked whether the employer
rejected the above proposal during the negotiations prior to
the interest arbitration hearing in March 1995, Mr. Ferris
said that the proposal was totally recycled and that the only
change that had occurred was that around the spring of 1993,
about the same time as the grievance, and possibly as early
as the July 1, 1992 Knopf award, the employer stopped placing
people on full-time contracts. He said that the employer's
position at that point was that everything had a monetary
cost or an administrative burden. He did not dispute that
the employer 's objections were similar to those it had raised
during the previous round of negotiations. He acknowledged
that Staff Representative Carol Warner had proposed that the
union would delete the last line of its proposed Art. 4.05 in
an effort to seek the employer's agreement to the clause.
Mr. Ferris recalled Ms. Hammond having approached him in
the winter or early spring of •1993 about the full--time con-
tract to replace someone who was off on Workers ' Compensation
6
benefits. He counselled her that she did not have a griev-
ance at that time because the collective agreement did not
require the employer to replace a person on Workers ' Compen-
sation benefits with a contract, and told that her they were
in negotiations and discussing the issue. In June or July of
1993 Ms. Hammond asked him about going on contract to replace
an employee going on maternity leave. He told her to contact
Mr. Mercer about start dates for her contract and later as-
sisted her in filing a grievance under Art. 12 .06. In cross-
examination Mr. Ferris said that he was not sure that he was
in negotiations in early 1993 when Ms. Hammond spoke to him
regarding the Worker' s Compensation leave taken by a full-
time employee.
Mr. Ferris acknowledged that Art. 12.03 was agreed to in
1991, that it referred to Art. 12 leave without pay, Art.
12 .05 union leave without pay, and Ex. 13 maternity leave,
and that a person on maternity leave receives full benefits
from the employer. He added that an employee on union leave
also receives full benefits from the employer. He acknowled-
ged that Art. 12.03 refers to Art. 38 which deals with sick
leave and sick leave credits.
Mr. Ferris said that because the Art. 12.03 provision
pertaining to I - 4 week vacancies was not being used, the
union intended to eliminate the provision pertaining to such
vacancies with its proposed Art. 4.05. He agreed that the
addition of references to W.C.B. and S.T.D. and maternity
leave in its proposed Art. 4.05 were new. He acknowledged
that leaves of absence in Art. 12 were without pay, and that
Art. 4.05 does not confine leave of absence to without pay
circumstances. He agreed that a person on maternity leave is
entitled to Unemployment Insurance benefits, and that such
benefits are paid for by the employer' s premiums, and added
that the employee contributes to the premiums as well. He
said that if a maternity leave was under 4 weeks in length,
it was addressed by Art. 12.03. He acknowledged that the
words "maternity leave" first appear in the proposed Art.
7
4 .05, and stated that it was current practice. He did not
agree that the union had indicated to management that Art.
4.05 included expanded rights for the union. In his view,
"leave of absence" in Art. 12.03 and 12 .06 includes personal,
maternity and union leave of absence, which, in his view, are
leave of absence without pay.
He acknowledged that throughout the negotiations leading
to interest arbitration in 1992 management had indicated the
following concerns about the union's proposal: after 3
months on a contract, apart-time person would be entitled to
benefits; management had sufficient part-time employees to
fill vacancies due to Workers ' Compensation abences, short-
term disabilities, and maternity leaves; it would restrict
management 's right to staff as it saw fit and as required by
the Ministry of Health; and it would cause management extreme
administrative difficulties because at any time there are
staff on Workers ' Compensation or short-term disability or
maternity leave benefits. Mr. Ferris said that the union
thought that replacing staff on an ad hoc basis placed a far
greater administrative burden on management. He acknowledged
a document summarizing management's position regarding the
union's proposal at arbitration (Ex. 10) which indicated it
would be difficult for management to monitor who is on bene-
fits and who is entitled to benefits and that it was admini-
stratively easier to utilize part-time staff. He acknowledg-
ed the brief filed on behalf of OPSEU (Ex. 11 ) and the
union's rationale therein for its proposed Art. 4.05:
Preference for hiring of part-timers to fill
temporary vacancy. OPS has an article requir-
ing posting of vacancies; we are similarly
here trying to increase protection for exist-
ing employees.
Reflects current practice for past 2 years.
He acknowledged that the employer denied that that was the
current practice.
8
Mr. Ferris stated in cross-examination that his under-
standing, i.e. that in each case where full-time employees
had been on leave of absence over 4 weeks in length and on
Workers ' Compensation, short-term disability or maternity
benefits, the employer used a part-time employee on a con-
tract, was based on anecdotal evidence and that he had no
documentation. He acknowledged that the employer does the
scheduling and makes leave arrangements. He acknowledged
having told the grievor that there was no onus on the em-
ployer to replace an employee absent on Worker's Compensation
with a contract employee. He said that management was repla-
cing such employees of its own volition, and that there was
no means of enforcement of the practice. When asked to agree
that there was no obligation on the employer to replace an
employee on maternity leave of absence with a contract, he
replied that the union believes the opposite, because over
the previous 3 to 4 years employees on leave due to materni-
ty, disability and work-related injury or accident had been
replaced by contract. He agreed his knowledge was anecdotal
and that nothing in the collective agreement caused him to
tell the grievor that replacement of employees on maternity
leave was covered in the agreement. He acknowledged that the
right to replace absent employees came under Arts. 12.03 and
12 .06, and said that that would include personal, union, and
maternity leave' of absence, and sickness, but not absence
while on Workers ' Compensation benefits. He acknowledged
that before and after June 16, 1993, when Ms. Hammond' s grie-
vance was filed, the union had been pursuing its proposal of
a new Art. 4.05 and that a pre-hearing of her grievance was
held on October 10, 1993. Mr. Ferris acknowledged that the
pre-hearing took place while the union continued to negotiate
for the adoption of its proposed Art. 4.05.
Blair Bushell has worked as an ambulance attendant on a
part-time basis for this employer since 1989, and full-time
since November of 1991. He filled in on a full-time contract
basis several times when full-time employees were absent and
9
on Workers ' Compensation, short-term disability and maternity
benefits. He covered Eleanor Barr' s maternity leave from
March to June of 1990 as a result of having learned of it
through Supervisor Walt Smith. He covered someone else's
leave from December 89 to March 1990. From December of 1989
to March of 1991 he was employed under consecutive contracts
of various types. He was not aware of any of the contracts
having been posted. He said he actually signed contracts for
the replacement positions, but not on each occasion, and that
he did not have copies and was not given a copy of every
contract that he had signed.
Irene Carruthers has been an administrative employee of
Thames Valley Ambulance for 14 years, and has been Assistant
Manager for about 8 years. She has been a member of the em-
ployer' s negotiating team for 7 to 8 years. She handles the
financial aspect of administration and keeps records of who
is on leave at any given time. She advised that there were
about 50 full-time employees and 30 part-time employees in
June of 1993.
Ms. Carruthers identified exerpts of the union's and
employer' s briefs (Ex. 12 and 13) for the interest arbitra-
tion resulting in the March 29, 1995 Knopf award (Ex. 14) .
She denied that the employer had a practice of filling all
leaves with a part-time employee on contract, and said that
the employer has never had that practice. She said that the
employer "replaces" with part-time employees generally and
"there may have been the odd one that might have gone on a
contract" but that the majority of absences due to leave of
absence have been filled by part-time employees. The super-
visors usually do the scheduling and they call the part-time
employees "according to seniority, just on a random basis off
our calling sheet" either on a day-to-day basis or by slot-
ting part-time employees into full-time employees ' usual
hours. In cross-examination Ms. Carruthers said her duties
did not include scheduling the employees.
10
Ms. Carruthers said that she believed that four materni-
ty leaves had been taken in the 14 years in which she had
been with the employer, by Astrid Foot, Eleanor Barr, Dawn
Elliot and Erica Daudlin. A part-time person was not given a
contract during Ms. Foot 's and Ms. Elliot 's leaves and their
schedules "would have been" filled by using part-time people
"on a random basis" . Mr. Bushell was given a contract for
part but not all of Ms. Barr's maternity leave and the ba-
lance of her leave was filled by scheduling other part-time
employees in her shifts on a random basis. In cross-examina-
tion she said that Ms. Foot's maternity leave occurred over
10 years ago, prior to Ms. Hammond's date of hire, Ms. Barr' s
leave was possibly from March to June of 1990 and Ms. Elliot
began leave in the summer of 1993 after Ms. Daudlin returned.
Ms. Carruthers did not dispute that Mr. Bushell replaced
Ms. Barr while she was on leave and receiving Workers ' Com-
pensation benefits from December of 1989 to March of 1990 and
while she was on maternity leave from March to June of 1990.
She did not dispute that Mr. Bushell had worked under conse-
cutive contracts from December of 1989 to March of 1991 and
that Ms. Hammond worked under contracts in 1992 and replaced
Ms. Pepper while she was on leave of absence. In re-examina-
tion she said that Ms. Pepper attended a university course
while on leave, and agreed that that was a leave of absence
without pay, to which the employer felt Art. 12.06 applied.
She explained in cross-examination that when she said
that Art. 12 .06 applied only to personal leave of absence,
she meant that it applied only to leave without pay, a leave
where the employee "would just go off and do something on
their own for any reason, personal leave of absence" . She
said that she did not consider maternity leave a personal
leave of absence, but considered it instead a leave with pay,
but not a leave of absence. She agreed that "Art. 12.06 is
mandatory" where the leave of absence without pay exceeds 4
weeks .
11
Ms . Carruthers said that during the negotiations leading
to the February 14 , 1991 local Memorandum (Ex. 2 ) , the em-
ployer had rejected the proposal to change the word "may" to
"shall" . Its explanation at the time was that it had suffi-
cient part-timers to fill those leaves and did not need to go
on a contract basis . The employer rejected the union' s ini-
tial proposal of a new Art. 4.05 because it had sufficient
part-time employees to utilize and had already implemented it
a few times and found it very difficult, and had decided to
continue to utilize part-time people "on a random basis" .
She agreed that the employer had done a few contracts between
1989 and 1991, because the article said "may" and therefore
left it at their option, although the employer does not have
to. She said not all full-time leaves of absence were con-
tracted out to part-time employees between 1989 and 1991. The
employer tried contracts for a few years, found it wasn't
working out, and returned to using part-timers on a random
basis . The decision to put a part-time employee on a con-
tract to fill a full-time employee's leave of absence had
been made by Mr. Duffield when a part-time employee requested
such a contract, but it was always the employer's option to
exercise or not. The problem that arose was that after a
part-time employee on a temporary full-time contract had been
working for 3 months, they were entitled to benefits through
London Life, and very. often they would be put on benefits and
their contract would expire before London Life had processed
their application, and it was frustrating both her and London
Life, and the employer decided it wasn't working out. She
acknowledged that the employer had taken the position stated
in Ex. 10 throughout the 1991 - 1992 round of negotiations.
In cross-examination Ms. Carruthers said that other records
had to be adjusted when an employee went from part- to full-
time, and "when the union started to demand it, Mr. Duffield
said I guess it ' s time to stop it" . By "on a random basis"
she meant that part-time employees ' are called from their
12
seniority list, called a "fallback sheet" , to replace full-
time employees on their open shifts, if they are available.
Ms. Carruthers said that the employer contributes to the
Unemployment Insurance premiums and that employees on mater-
nity leave receive Unemployment Insurance benefits. Employees
on maternity leave receive a taxable benefit while on leave
in the form of the employer's contribution to their London
Life and Unemployment Insurance premiums. An employee on
maternity leave would be aware of having received a taxable
benefit during the leave when they received their T4 slip.
In cross-examination, Ms. Carruthers said that Art.
12 .06 is applied when a person is granted personal leave of
absence without pay for a period exceeding 4 weeks, and that
the. words "leave of absence without pay" do not include all
leaves of absence without pay. She said that when the em-
ployer had used a contract, it had done so under Art. 12.03.
She agreed that Art. 12 .03 was first agreed to in the Febru-
ary 14, 1991 local Memorandum of Settlement (Ex. 2 ) . She
agreed that her evidence had been that the employer had used
contracts to replace full-time employees on leave of absence
from 1989 to 1991, that she had usually replaced a full-time
employee. on leave of absence with a part-time employee, and
that the vacancies caused by full-time employees on leave
were called open shifts on the schedule. She acknowledged
that Ms. Hammond and Mr. Bushell had possibly worked on seve-
ral contracts between 1989 and 1991, and that she had said
that the employer had done the odd one or two contracts over
that period. She agreed that in filling an open shift, the
employer must follow the criteria in Art. 37 .05 in the local
Memorandum of settlement dated February 14, 1991. Art. 37 .05
provides:
37 .05 Where an open shift exists, or a replace-
ment is needed the following procedure
shall be followed:
( 1) the hours shall first be offered to part-
time employees, by seniority, until
13
either the opening is filled, no part-
time employee is available, or all part-
time staff have been scheduled for twen-
ty-four (24 ) hours.
(2 ) If after step ( 1 ) there are hours still
to be filled, it shall be offered to
available full-time employees, by
seniority.
(3 ) If after step (2 ) there are hours still
to be filled, they shall be re-offered to
part-time employees as in Step ( 1 ) until
all part-time staff have been scheduled
for forty (40) hours.
(4 ). If none of the above steps result in the
filling of the shift, scheduling shall be
at the discretion of the Company.
(5 ) For the purposes of this Article the fol-
lowing shall apply:
a) Shifts may be split into four (4 ) or
Five (5) hour segments,
b) Where a number of shifts are avail-
able, all will be offeres (sic) , not
just the first shift available.
C) Every employee shall have a minimum
of seven (7 ) hours off between
shifts.
(7 ) It is the responsibility of each employee
to refuse any shift violating conditions
in number (5) above.
(8 ) Where an error has been made following
the open shift protocol in Articles 37 . 05
( 1 ) , (2 ) and (3) , the employer will dis-
cuss the error with the steward and com-
pensate the employee by offering to him
the next mutually agreed available shift.
The Union's Arguments:
The employer has violated Art. 12 .06. The evidence of
three union members was that the practice has been not to put
up a posting, but to ask the part-time employees if they were
interested. The union contends not that the employer is re-
quired to post, but that it must ask the part-time employee
14
with the highest seniority to take the position, and that was
what the employer had been doing.
The language in Art. 12 .03 covers a leave of absence ex-
ceeding one week and up to 4 weeks under Articles 12, 13 or
38, and is discretionary. Where a leave of absence exceeds
four weeks, in all cases of leave of absence without pay, the
employer must appoint the most senior part-time employee to
fill the full-time position.
Mr. Ferris testified that two employees were on materni-
ty leave. Article 13.01 of the collective agreement states
that maternity leave shall be governed by the Employment
Standards Act and regulations and that the employer shall
maintain benefits for the period covered by Unemployment In-
surance benefits. S. 35 of the Employment Standagds Act says
an employee is "entitled to a leave of absence without pay" ,
i.e. it says that maternity leave is a leave of absence with-
out pay. As a result, Art. 12.06 requires the employer to
replace an employee on maternity leave by giving a part-time
employee a temporary full-time contract. S. 42( 1 ) of the Em-
ployment Standards Act indicates that an employee continues
to participate in each benefit plan unless she elects not to
do so. Art. 13.01 of the agreement requires the employer to
maintain the bnefits of an employee on maternity leave.
The grievor was at the top of the part-time seniority
list on June 16, 1993 when she grieved. She was entitled to
fill in for Ms. Daudlin. The evidence established that that
was the practice. Ms. Carruthers ' evidence as to the four
employees who had taken maternity leave indicated that one
leave occurred before Ms. Hammond was hired, and there was no
evidence as to the language of the contract at that time.
Ms. Carruthers confirmed that Mr. Bushell replaced Ms . Barr
while she was on maternity leave from March to June of 1990,
and that he replaced her during other periods. Ms. Elliot ' s
maternity leave commenced after this grievance was filed.
At the time of the July 1, 1992 Knopf award there was no
allegation of abuse or improper assignment, which Arbitrator
15
Knopf states on page 7 of her award. Mr. Bushell and Ms.
Hammond testified that they had filled in for a number of
full-time people on contract for many different reasons . The
absence of specifics in their evidence does not mean these
contracts did not occur. The employer has the record and
could have produced them, but chose not to.
As the negotiating history regarding 1995 occurred after
June 16, 1993, the date of the grievance, the negotiating
history is not relevant to this case and should be given no
weight. Mr. Ferris ' evidence regarding the negotiating his-
tory is that in negotiations the union has attempted to
change the language in Art. 12 to reflect the employer' s
practice, and as a matter of housekeeping, to move the matter
from Art. 12 to Art. 4 which deals with filling vacancies.
The employer has argued that replacing a full-time em-
ployee with a part-time one on contract caused difficulties.
The language in Art. 37.05 of the February 14, 1991 local
Memorandum requires the employer to strictly follow its terms
when replacing open shifts . It must first offer the shifts
to part-timers on the basis of seniority, if they have less
than 24 hours in a week. If all part-timers have more than
24 hours, the open shifts are offered to full-time employees.
If after having offered the open shifts to full-time emplo-
yees open shifts still remain to be filled, the employer must
return to part-time employees who work over 24 hours, and
they are paid at time-and-a-half. Full-time employees who
work over forty hours a week are also paid at time-and-a-
half. The employer must follow that process each time it is
arranging schedules. Replacing a full-time employee for his/
her entire leave with a part-time employee on contract is an
easier process than the Art. 37 .05 process. Due to the re-
quirement to pay at the overtime rate in Art. 37 .05, the cost
could be greater for the employer by using Art. 37 .05 to
replace full-time employees on leave of absence than to offer
a contract to a part-time employee.
16
Ms. Carruthers ' evidence regarding difficulties with the
insurance company is irrelevant and should not determine why
the employer does not follow Art. 12.06.
There is no ambiguity in Art. 12 . 06; the language is
clear. If there is an ambiguity, it is latent, one not appa-
rent on its face, but in its application. The evidence de-
monstrated that Art. 12 .06 has been used to cover a number of
absences including maternity leave and has established a past
practice of the employer. Estoppel sould also be applied in
this case. The employer filled these vacancies with a full-
time contract to the most senior part-timer. One party by
word or conduct has acted in a manner such that the other
party has relied on it. Although Ms. Carruthers said the
employer filled those vacancies with contracts to the most
senior part-timer as a favour, the language of Art. 12 .06
made the employer's actions mandatory.
Art. 12 .061says the employer must offer a temporary
full-time contract in all cases of leave of absence without
pay. The Employment Standards Act says maternity leave is a
leave of absence without pay. The employer's past practice
was to replace employees on maternity leave with full-time
contracts until 1993, at which time they chose not to do so
any longer. The union did not accept the position that the
employer was not required to do so and filed the grievance.
The union requests a finding that the employer has vio-
lated Art. 12.06, that Ms. Hammond should have replaced Ms.
Daudlin during her maternity leave which exceeded 4 weeks,
that Ms. Hammond be compensated for the money she would have
earned during that period, i.e. the difference between what
her earnings as a part-time employee and what she could have
earned for the full-time hours she could have worked, plus
interest on the difference, and that the arbitrator remain
seised with respect to implementation.
17
The Employer' s Arguments:
The language in the collective agreement is clear and
supports the employer' s position. The only mandatory con-
tract situation arises when there is a leave of absence with-
out pay. It does not support a maternity leave of absence
being filled with a contract.
In the alternative, the collective agreement is ambigu-
ous, and the negotiating history can be considered. A consi-
deration of .the negotiating history and the two interest ar-
bitration awards will result in the employer's view being
preferred.
If there is any estoppel, it operates against the union
rather than the employer.
Art. 12.03 and 12.06 deal with two entirely different
situations. There are separate components. Art. 12.03
deals with a leave of absence in excess of one week arising
under Arts. 12, 13 and 38. Art. 12.06 deals with leave of
absence without pay.
Art. 12 is headed "Leave of Absence" , but it deals with
leave of absence without pay at 12.01, and with union leave
at 12 .05, which is also a leave of absence without pay. The
scheme of Art. 12 is to deal with two kinds of leaves of ab-
sence without pay.
In the original collective agreement (April 1, 1988 to
March 31, 1989 - Ex. 1) , Art. 12.06 referred to leave of ab-
sence without pay. Art. 12.06 was contained within Art. 12 .
Art. 12 dealt directly with personal and union leave. Art.
12.03 in the February 14, 1991 local Memorandum refers to
Art. 13, which deals with maternity leave. Maternity leave
is leave of absence with pay, and is to be distinguished from
personal leave without pay in Art. 12 . Art. 38 deals with
sick leave, and is an employer-funded sick leave credit pro-
gram. While an employee is on leave, he receives sick leave
credits. If the sick leave credits are not used, an employee
can cash it in at the end of the year. If the sick leave
creedits are used up, the employee can go on short- or long-
18
term disability benefits . The employer pays the employee for
each day of absence up to a maximum in relation to his banked
sick leave credits . There is no difference in any of those
programs on the issue of funding; the employer pays the insu-
rance premiums and the sick leave credit. Unemployment Insu-
rance, Workers ' Compensation, short- and long-term disability
are all employer-funded programs. One case indicates that a
person receiving money from those sources is on leave of
absence with pay.
Art. 12.03 deals with one leave of absence without pay
situation, i.e. Art. 12 leave, and Art. 13 and 38, which are
leave of absence with pay. Under Art. 12 .03, in all three
kinds of leave, the employer has a discretion where the leave
exceeds one week; the proviso is not mandatory. At most, the
union' s case falls within Arta 12 .03, and the union can ask
the employer to consider it. The employer is exercising the
discretion it is entitled to exercise.
Art. 12.06 should be contrasted to Art. 12 .03. Art.
12 .06 does not refer to the three articles referred to in
Art. 12.03. In Art. 12 .06, the circumstances are limited to
a so-called leave of absence without pay. Art. 12.06 is the
only article that uses the term leave of absence without pay.
It does not use the terms maternity, Workers ' Compensation,
short-term disability leave of absence. That wording shows
up only in negotiations. Art. 12.06 simply refers to leave
of absence without pay.
The concept "without pay" means the individual receives
no monetary or any other pecuniary remuneration. A person on
maternity leave receives Unemployment Insurance benefits and
benefits under the collective agreement. The concept "with-
out pay" must be distinguished from the concept of "wages" .
The union wants "without pay" to be read as "without wages" .
"Wages" is narrower than "pay" . The terms "wages" appears in
Art. 39, which states "all payment of wages shall be made in
accordance with the wage rate set forth in Shedule 'A' here-
to. . . to Schedule A, which contains the wage grid, does not
19
include benefits . Within this collective agreement, the con-
cept of wages is strictly the person' s hourly rate, but "wag-
es" is not "pay" . In this collective agreement, "pay" goes
beyond "wages" . "Pay" in this agreeent covers the welfare
and pension benefits in Art. 40, the life insurance benefits
found in Schedule B, and the short- and long-term disability
benefits found in Scheule BB. Art. 5 deals with the concept
of "pay cheques" and receipt of "pay" and the collective
agreement refers to taxable benefits.
The concept of pay in labour relations includes payment
for holidays, vacation, call-in and stand-by pay, severance
pay and Workers ' Compensation. Where the parties wanted to
say leave-of-absence with pay or with penefits, they provided
that wording. Art. 9 deals with compassionate leave as a
leave of absence with pay. Art. 10 deals with attendance in
court. Art. 11 provides for leave of absence with full pay
for education and training courses where the Ontario Ministry
of Health pays the Company all costs relating to such cour-
ses, and leave of absence without pay and without loss of
seniority or benefits for writing examinations for relevant
training programme courses. Art. 14 deals with paternity
leave. where the parties meant leave without pay, they said ,
that, and Art. 12 .06 refers to leave without pay.
In JBG Management Inc. and C.U.P.E. , Local 2040 ( 1987 )
30 L.A.C. (3d) 101 (Haefling) , the arbitrator equated all
amounts paid to an individual as pay. In that case, Workers '
Compensation benefits were included as pay. Regardless of
the source, where the employer pays a premium, the leave is
"with pay" . In ,JBC the employee sought vacation pay while on
Workers ' Compensation benefits. The board had to determine
gross annual earnings, and considered what gross earnings
meant. At p. 104, supra, the board noted a series of cases
which indicated that "gross pay" included previous vacation
pay, and at p. 110 it indicated that all compensation consti-
tutes "pay" . Unemployment Insurance and Workers ' Compensa-
tion benefits are statutorily required insurance programs.
20
Both are part and parcel of the concept of "pay" , which JBG
equates to be "all compensation and benefits" .
Northern Electric Employee Ass 'n, Unit 4, and Northern
Eelctric Co. Ltd. ( 1962 ) 13 L.A.C. 60 (Reville) says the same
thing as JBG, that pay is not just wages, but all money bene-
fits. The Northern board had to interpret the word "earn-
ings" and determined that it meant wages and other pecuniary
benefits bargained. OPSEU is arguing that pay does not in-
clude everything they have negotiated over the years.
The board should consider both Knopf interest arbitra-
tion awards and the fact that the union' s proposal of Art.
4.05 was rejected in both awards. The language is clear.
Art. 12.03 and 12.06 cover different situations. Ms. Hamm-
ond's situation falls within Art. 12.03, not Art. 12 .06.
Maternity leave is a benefit with pay. Alternatively, the
board may determine that the term "leave of absence" is ambi-
guous as to what it includes, or that leave of absence with-
out pay includes maternity leave. The ambiguity can be
latent or patent.
With regard to the negotiations, the union's first pro-
posal of a new Art. 12 .03 included reference to Art. 13,
which is maternity leave, and included the word "shall" . It
would not make logical sense for the union to want to negoti-
ate an Art. 12.03 which really mirrors Art. 12.06 except for
the time frame. The union's initial proposal contemplated
Art. 12 .06 would remain the same as in the collective agree-
ment, so two scenarios were considered in Art. 12 .03, i.e.
Art. 12 leave without pay, and Art. 13 and 38, which were
leaves with pay. The union's proposal was watered down from
"shall" to "may" because the employer did not want a situa-
tion where all those types of leaves resulted in a contract
position. The employer resisted that proposal as far back as
the 1989 negotiations. The union revisited the same situa-
tion in a new Art. 4.05 in the 1991-1992 negotiations. Mr.
Ferris agreed that the employer resisted the union' s proposal
for the reasons set out in its brief (Ex. 10) and in cross-
21
examination acknowledged that the employer disputed the exis-
tence of any clear practice and held that position during the
negotiations. Although the union suggested to Arbitrator
Knopf that its Art. 4.05 had been the practice for the past
two years, in cross-examination Mr. Ferris said that Art.
4.05 expanded the rights held by the union under Arts. 12 .03
and 12.06.
The union was seeking a contract replacement for those
on maternity leave of absence in the 1992 set of negotia-
tions, which is what they are seeking of this board. The
employer flatly rejected this request in 1992 and it was re-
jected by Arbitrator Knopf. The union is seeking in a rights
arbitration what it did not get in interest arbitration. The
fact that they are seeking it in a rights arbitration indi-
cates that they did not already have it.
The union's proposal for the 1995 negotiations (Ex. 9,
p. 16 ) indicates that the union was again seeking its pro-
posed Art. 4.05, this time with Parental and Pregnancy Leave,
rather than maternity leave. In 1995 the union advanced its
position in its brief, Ex. 13, and its submissions are set
out in the 1995 Knopf award, and at pp. 2 - 4, Arbitrator
Knopf accepted the employer's arguments and rejected the
union's demands.
The union requests you to find a long-standing practice.
The board should consider Brown & Beatty regarding Extrinsic
Evidence, Negotiating History, and Past Practice, and stan-
dards of evidence. The evidence of Mr. Ferris, Mr. Bushell
and Ms. Hammond indicates there has been insufficient prac-
tice, and the evidence is insufficient to allow the conclu-
sion that the union' s interpretation is correct. The third
criteria referred to at p. 3-54 in Brown and Beatty, "acqui-
escence in the conduct which is either quite clearly express-
ed or which can be inferred from the continuance of the prac-
tice for a long period without objection" was not met. The
evidence of past practice covers a short period and must be
over several years and a few contracts.
22
Mr. Ferris acknowledged in cross-examination that Arts .
12.03 and 12 .06 do not include Workers ' Compensation leave.
Art. 12 .03 and 12 .06 read together do not cover maternity
leave exceeding 4 weeks any more than they cover Workers '
Compensation leave. Nothing in Art. 12 .06 supports the dis-
tinction Mr. Ferris gave to Ms. Hammond, that she did not
have a grievance regarding a Workers ' Compensation leave, but
had one for a maternity leave. The board should dismiss the
grievance on the basis of ambiguity. The parties placed a
clear and unambiguous interpretation on it both at negoti-
ations and at interest arbitration.
In Beatrice Foods Inc. and R.W.D.S.U. . Loc. 440 ( 1994 ) ,
44 L.A.C. (4th) 59 (MacDowell) , the union argued estoppel and
claimed that an overtime premium was payable for both statu-
tory holidays and hours actually worked. Arbitrator McDowell
spoke of estoppel having to be a long-standing practice, and
of the employer having to give notice to the union of the in-
tention to stop the practice, failing which as estoppel would
arise due to detrimental reliance. In this case, there was
no employer representation from 1989 to 1995. The employer
has resisted the notion of a mandatory_contract and has never
lead the union to believe it would agree to that. From 1989
to 1995 the employer opposed an inclusion in the agreement
regarding contracts during leaves and took the position that
there was no practice and would not give that right, as a
result of which the union was aware from square one that the
employer would not agree to this right in the agreement.
Evidence was provided by two of 45 to 50 full-time and
30 part-time employees. The grievor said she would not know
whether she was substituting for someone on leave when she
was assigned to open shifts and did not know what the em-
ployer' s practice was. Mr. Bushell had a contract for only a
portion of the maternity leave. Mr. Ferris ' evidence was
hearsay and anecdotal. Ms. Carruthers ' evidence, that even
while offering contracts, they were also replacing employees
on the open shift method, was uncontradicted. There was ne-
23
ver a practice of assigning contracts to every leave of ab-
sence of full-time employees .
If any estoppel arises, it is against the union, as the
employer had a long-standing practice to assign part-time em-
ployees to open shifts as it saw fit. Mr. Ferris ' evidence
and the documentary evidence shows that the union at no point
asserted that it had the right to post a contract for a full-
time leave of absence. The employer detrimentally relied
upon the union's silence.
The fact that s. 35 of the Employment Standards Act uses
the words "leave of absence without pay" does not require
this board to interpret the collective agreement on the
terminology in the Act. The parties used the words "with
pay and "without pay" in various articles in the agreement.
The board should look within the collective agreement for the
agreement's own schemes. The parties used the terms they
meant in the various articles.
The union argued that there was a latent ambiguity and
that Art. 12.06 was used to cover a number of absences. There
is no evidence that Art. 12 .06 was used on any document to
cover any of the situations that the union alleges. Ms. Car-
ruthers said it was her business to know who was on leave,
and there was never a practice of handing out a contract for
any other circumstances, and that was not contradicted by the
evidence of the union' s witnesses.
If compensation is ordered, interest is inappropriate in
this situation. The grievance should be dismissed on all
grounds.
, The Union's Reply:
The employer does not pay an employee on maternity leave
of absence. The Employment Standards Act should not be
ignored. Benefits are not paid to an employee while she is
on maternity leave.
"Pay" means wages only. Unlike this case, JJJQ is as
Workers ' Compensation case. Employees do not contribute to
24
Workers ' Compensation premiums, but they do to Unemployment
Insurance Premiums . The union does not argue that earnings
from Unemployment Insurance would not be considered part of
"gross annual earnings" , but they are not pay from the em-
ployer. As Northern Electric does not deal with the same
issue, it is not relevant. Unemployment Insurance payments
are earnings, not pay.
Sick leave credits are earned by an employee, who must
work to earn them. Employees receive only 6 sick leave cre-
dits per year, and if they are absent in excess of 6 days,
they are absent without pay. Therefore, sick leave under
Art. 38 can be a leave of absence without pay.
The employer narrowly interprets Art. 12 .06 as applying
only to union and personal leaves. Art. 12 .03 refers to ma-
ternity leave and Art. 12.06 says "in all cases" . As Ms.
Carruthers ' evidence was that contracts were given as early
as 1989, and as Art. 12.03 was not negotiated until 1991, the
contracts she referred to were given under Art. 12 .06.
There were only two maternity leaves of absence during
the time the board is asked to review, one for which Mr.
Bushell was given a full-time contract, and the other is the
subject of this grievance. The practice occurred over a long "
period, from 1989 to 1992 or 1993, and went through at least
two rounds of negotiations.
Two of the union' s witnesses were part-time employees
from the top of the seniority list who would be those most
affected by the full-time contracts.
The employer' s submissions regarding an estoppel have
been raised here in argument for the first time and should
therefore be given no weight. Interpret only the articles in
question in reference to the Employment Standards Act, rather
than the entire collective agreement.
It would be appropriate to award interest on
compensation the grievor lost.
25
Considerations :
At p. 110, in JBG, supra, Arbitrator Haefling stated
. . . I agree with the general; proposition that "gross
annual earnings" must be taken as referring to
amounts received by employees as "pay" .
. . .It is apparent that the word "earnings" used
alone is wider in scope than the term "wages" , but
that the latter is more commonly used to refer to
the specific periodic remuneration an employee re-
ceives for hours, days and weeks actually worked.
. . .it is clear that most other arbitrators have
considered the wider term "earnings" , unless it is
qualified and made more restrictive, as being ca-
pable of including "all compensation which is re-
ceived by an employee by way of pay
The foregoing, upon which the employer relies, inter-
prets "earnings" in a context quite different from "pay" or
"without pay" in relation to leave of absence and is of limi-
ted usefulness in resolving this dispute.
Arbitrator Reville construed the term "earnings" in Nor-
thern Electric, supra, and concluded at p. 73:
It is the opinion of this board that the term
[earnings] is not ambiguous and is only susceptible
of one meaning, namely all wages and other pecunia-
ry compensation payable to an employee by reason of
the provisions of the collective agreement under
which he works and binding on him, his union, and
the company for whom he works. That being so, this
board is of the opinion that the inclusion or ex-
clusion of the word "total" or the phrase "total
annual" in connection with the word "earnings" is
quite immaterial and, in fact, is redundant. . . .
As Arbitrator Reville did not interpret the expression
"with pay" or "without pay" , his remarks are also of limited
assistance in resolving this dispute.
What must be determined initially is whether the parties
in this case intended, by utilizing the term "leave of ab-
sence without pay" in Art. 12.06 to have included or excluded
leaves of absence wherein an employee received Unemployment
Insurance maternity benefits and the benefit of the employer
maintaining its contribution to an employee' s benefits while
on maternity leave.
26
The employer argues, essentially, that the term "pay" is
equivalent to the term "earnings" and must be construed as in
JJJQ and Northern Electric, supra. The union argues that the
parties intended maternity leave to fall within the parties '
intended meaning of the phrase "leave of absence without pay"
in Art. 12 .06 because Art. 13 indicates that maternity leave
"shall be governed by the Employment Standards Act and regu-
lations" , and s. 35 of the Employment Standards Act states
that a pregnant employee "is entitled to a leave of absence
without pay
The first approach to be taken is an effort to determine
the expressed intention of the parties in the words they have
used in their collective agreement and Memoranda of Settle-
ment. If their expressed intention can be determined from
their words without an ambiguity arising, it will not be
necessary to consider the evidence of past practice and nego-
tiating history. In determining the meaning the parties gave
to the words they used in their collective agreement, the
ordinary meaning should be applied to those words unless an
absurdity would result.
The Oxford Encyclopedic English Dictionary (Clarendon
Press: Oxford, 1991) defines "pay" as "wages; payment" . It
defines "wage" as
" (in sing. or pl. ) a fixed regular payment, usu.
daily or weekly, made by an employer to an
employee, esp. to a manual or unskilled worker (cf.
SALARY) " .
It defines "salary" as "a fixed regular payment, usu. monthly
or quarterly, made by an employer to an employee, esp. a pro-
fessional or white-collar worker (cf. WAGE n. 1 ) " . It defines
"payment" as
n. 1 the act or an instance of paying. 2 an amount
paid. 3 reward, recompense.
Thus, there are two ordinary meanings of "pay", i.e.
"wages" , which specifies the employer as the payor, and "pay-
ment" , which is more generic and does not designate the
employer as the source of payment.
27
The employer' s position as argued is that essentially,
any payment received by an employee while s/he is on leave,
to which the employer has contributed, directly or indirect-
ly, removes it from the description "leave of absence without
pay" within the meaning of Art. 12 .06 . An employee on
maternity leave is entitled to up to 17 weeks of Unemployment
INsurance benefits, and the employer has contributed to the
premiums for those benefits . The ordinary meaning of "pay"
as "payment" would support the employer's position as it
would remove maternity leave from the description "leave of
absence without pay" . The ordinary meaning of "pay" as
"wages" would bring maternity leave within the description
"leave of absence without pay" as argued by the union.
In view of this conundrum, it may be helpful to consider
the provisions of the entire collective agreement in which
the terms "leave of absence with pay" , "without pay" , or as
otherwise modified, appear with a view to determining whether
there is a scheme in the parties ' use of these terms in vari-
ous articles which will assist in interpreting their inten-
tion in respect of the term "leave of absence without pay" in
Art. 12.06.
ARTICLE 9 - COMPASSIONATE LEAVE
9.01 In the case of a death in the family of
an employee, being father, . . . the Compa-
ny shall grant a leave of absence, with
pay, for a maximum of three (3 ) scheduled
working shifts. . . .
9.02 In the case of a death in the family of
an employee, being spouse, . . . the Compa-
ny shall grant a leave of absence, with
pay, for a maximum of five (5)working
shifts. . . .
9.03 In the case of serious illness in the im-
mediate family of an employee, the Com-
pany may grant a leave of absence, with
pay, for a maximum of three (3 ) scheduled
working shifts. . . .
28
9.04 In the case of a death in the non-immedi-
ate family of an employee, the Company
shall grant a leave of absence, with pay
for one ( 1 ) day . . .
9 .05 In the case of a death contemplated by
this Article, an employee, being in
charge of required funeral arrangements,
shall be granted a leave of absence, with
pay, for a maximum of three (3 ) scheduled
workings shifts . . .
ARTICLE 10 - ATTENDANCE IN COURT
10. 04 An employee, who attends Court, in mat-
ters in which such employee has an inte-
rest, shall on giving under the circum-
stances, reasonable notice, be granted
leave for such attendance. Such leave
shall be without pay, but without loss of
benefits or seniority.
10.05 An employee, who is jailed, pending a
court appearance, shall be on leave of
absence, without pay, during such period.
ARTICLE 11 - EDUCATION MATTERS
11 .01 In all cases, where the Ministry of
Health . . . pays to the Company all costs
relating to education or training cour-
ses, an employee shall be entitled to a
leave of absence, with full pay, for such
purposes.
11.05 Upon seventy-two (72 ) hours notice, in
writing, by any employee required to
write examinations for any courses, as
hereinbefore mentioned, such employee
shall be entitled to a leave of absence,
without pay, and without loss of senio-
rity and without loss of benefits.
ARTICLE 12 - LEAVE OF ABSENCE
12 .01 An employee may be allowed a leave of
absence, without pay, for personal rea-
sons, if:
12 .03 -Where the company has granted a leave-of-
absence in excess of one ( 1 ) week, under
29
Article 12, Article 13 or Article 38 of
this Agreement, the position may be
filled by temporarily appointing the most
senior part-time employee to fill the
full-time position for the duration of
the leave.
12 . 05 (a) UNION LEAVE - An employee shall be
allowed leave of absence without pay
for attendance at Union meetings/ . . .
(b) Where an employee is elected or
appointed to a full-time position
with the Union . . . he shall be
granted leave of absence without pay
for the duration of such appointment
12.06 The company agrees that in all cases
where an employee is granted leave of ab-
sence without pay for a period exceeding
four weeks, that the position will be
filled by a temporary full-time posting.
ARTICLE 13 - MATERNITY LEAVE
13.01 Maternity leave . . . shall be governed by
The Employment Standards Act, and regula-
tions thereto. Benefits coverage shall
be maintained by the employer for such
period of maternity covered by U.I.C.
maternity benefits.
ARTICLE 14 - PATERNITY LEAVE
14.01 An employee whose wife, or common-law
wife is about to deliver a child shall be
granted one day' s leave of absence, with
pay, to attend the delivery.
ARTICLE 38 - SICK LEAVE AND SICK LEAVE CREDITS
38:02 The parties agree that employees with
monetary credits to their pre-1974 sick
leave bank, when absent due to illness,
shall cash those credits . . .
in Art. 11.01 the parties used the term "full pay" , and
in Art. 9 and 14 refer only to "with pay" . As one canon of
construction, expressio unius, exclusio alterus, views the
mention of "full pay" in Art. 11 as implying its exclusion in
Art. 9 and 14, it may be concluded that by using the term
30
"with pay" rather than "full pay" the parties intended that
the employee receiving Art. 9 and 14 leave was to receive
less than full pay. Fortunately, that is a point I am not
required to decide in this proceeding.
By the same canon of construction, because the parties
expressly stated in Art. 10.04 and 11 . 05 of "leave without
pay" , and "but without loss of benefits or seniority" in Art.
10.04 and "and without loss of seniority and without loss of
benefits" in Art. 11.05, it may be concluded that where the
term "leave without pay" or "leave of absence without pay" is
found, unmodified, that unmodified term implies the loss of
both benefits or seniority. Maternity leave as described in
Art. 13 specifies that the employer will maintain the bene-
fits coverage. Art. 13 says that maternity leave will be
governed by the Employment Standards Act. S. 42 (4) of the
= states "seniority continues to accrue during pregnancy
leave. . . " . It appears, then, that although the parties
expressed their intentions somewhat differently in Art. 13,
they intended Art. 13 maternity leave, Art. 10 ..04 court
leave, and Art. 11.05 examination leave to have the same
consequences regarding seniority and benefits. However, what
they intended by "pay" in each of these articles i.e. whether
they meant "wages" , or "payment" , is another matter.
The parties stated in Art. 13 that maternity leave will
be "governed by" the EmRl_oyment.. Standards Act. They did not
state that it would be "defined by" that Art. They did not
refer to Art. 12. 06 in Art. 13. Consequently, I conclude
that by their reference to the Act, they meant that the em-
ployee's entitlement e.g. duration of leave, source of re-
placement of wages, effect on seniority and benefits, etc. ,
would be determined in conformity to whatever the Act pro-
vided from time to time, subject to any greater benefit, if
any, provided in the collective agreement.
Neither the court leave in Art. 10.04, the "jail leave"
under Art. 10.05, the examination/education leave in Art.
11. 05, nor "personal leave" under Art. 12.01 are covered by
31
any plan for the replacement of "wages" , e.g. an insurance
benefit. Thus, I conclude that in Art. 10.04, 10 .05, 11.05
and 12 .01, in using the term "without pay" , the parties meant
"wages" . That does not in itself exclude the possibility
that for the purpose of Art. 12.06 they also intended the
meaning "payment" .
While on union leave "without pay" under Art. 12 .05 (a)
or (b) , an employee might be eligible for payment from the
union. That payment would not arise under any scheme or plan
under the collective agreement. It seems probable that both
parties would have recognized the likelihood that an employee
on extended union leave would receive payment from the union.
Thus, it seems likely that in Article 12.05, by "leave of
absence without pay" the parties were also referring to
"wages" paid by the employer.
In Art. 9, regarding compassionate or bereavement leave,
the collective agreement refers to "leave of absence, with
pay" . The collective agreement provides no insurance or
other scheme to replace the employee' s wages; the employer
continues to pay the "wages" or "salary" of the employee
despite his or her absence. In this context, "pay" means
"wages" or "salary" . In Art. 14, regarding paternity leave,
the parties contemplated a one day "leave of absence, with
pay" . Again, as the collective agreement provides no
insurance scheme or other scheme to replace the employee's
wages, the employer pays the employee 's regular "wages" for
the day. I therefore conclude that in Art. 9 and 14, the
parties used the term "with pay" meaning "wages" .
In Art. 38, sick leave credits constitute a "pay" or
wage replacement scheme for employees "absent due to ill-
ness" . The February 14, 1991 local Memorandum indicates that
the parties agreed that each employee would receive 72 hours
of sick leave credits under Art. 38.01 on the first of the
month following their initial employment and thereafter on
April 1 of each succeeding year of employment. Unused sick
leave credits as of March 31 of any year are to be paid out.
32
Art. 40.01 indicates that full-time employees are entitled to
coverage under the Welfare and Pension Benefit Plan on the
first of the month after completion of 3 months and refers to
Schedule "BB" , which indicates that the short-term disability
benefit commences on the 4th day for sickness and on the 1st
day for accident or hospitalization. Thus after 3 months of
employment there appears to be a "pay" or "wage" replacement
plan available for employees "absent due to illness" . From
the first month of the month following the start of his/her
full-time employment and until the end of the third month, a
newly-hired full-time employee "absent due to illness" would
receive up to 72 hours of "pay" or "wages" as a result of
sick leave credits. Once those credits were used, if further
sick leave was required, that portion of the leave would be
"without pay" . The apparent intention is that in all cases,
except for those hired within 3 months of the onset of the
illness, an employee "absent due to illness" would be "absent
with pay" in the form of either wages, sick credits, or
short- or long-term disability benefits. The parties did
not, however, refer to absence due to illness as "leave with
pay" in their agreement or Memoranda. The language in Art.
38 is consequently of limited assistance in determining the
meaning of leave of absence without pay in Art. 12 .06.
I conclude then, that in Art. 9, 10, 11, and 14, when
the parties used the terms "leave with pay" and "leave with-
out pay" they were referring to "wages" or "salary" paid by
the employer. It is only in the context of Art. 12 .06 that
it is suggested that the meaning of "pay" or "without pay"
extends beyond "wages" to include"payments" under wage re-
placement plans such as Workers ' Compensation or Unemployment
Insurance benefits. Although in some agreements "pay" has
been construed as including all earned benefits, such inter-
pretation has arisen from the particular language of the par-
ticular agreement.
33
The Decision:
Having reviewed all the provisions of this collective
agreement and 1991 Memorandum, and particularly the articles
employing the phrase "leave of absence" with the phrases
"with pay" and "without pay" , I am unable to conclude that
there is an ambiguity as to the meaning of "pay" or "without
pay" . It is therefore not necessary to consider the evi-
dence of past practice and the negotiating history, which was
admitted subject to my determination as to whether there was
indeed an ambiguity.
I conclude that in the context of this agreement and the
February 14, 1991 local Memorandum, by "leave of absence
without pay" in Art. 12 .06, the parties meant a leave of ab-
sence without "wages" paid directly by the employer. I con-
clude on the language of the agreement and the Memorandum
that they did not intend to exclude leaves of absence excee-
ding 4 weeks where the employee on leave received payment(s )
from other sources, notwithstanding that the employer may
have contributed in whole or in part to the premiums that
funded a wage replacement scheme. I therefore conclude that
the employer breached Art. 12.06 when it declined to place
Ms. Hammond on a temporary full-time contract to replace Ms.
Daudlin while she was on maternity leave.
I am not persuaded by either party's arguments that
either of them have made out the elements of an estoppel.
The grievance therefore succeeds.
I therefore direct the employer to pay Ms . Hammond the
difference between her part-time earnings and the amount she
would have earned had she been assigned to Ms. Daudline ' s
full-time hours, with interest. I will remain seised with
respect to implementation of this award.
By way of a postscript, the evidence suggested that
part-time employees may not always be aware of a vacancy
34
created by a full-time employee on a leave of absence without
pay in excess of 4 weeks . In view of the parties ' mutual
agreement not to physically post a notice of the vacancy left
by a full-time employee on a leave without pay of 4 or more
weeks, the union and the employer may wish to consider advis-
ing one another, promptly, in writing, of the intention of
any full-time employee to take such a leave of absence, as
soon as either learns of it, so that each may advise the most
senior part-time employee of the vacancy.
Dated at Toronto this 9th day of November, 1995.
Susan D. Kau ;Vice-Chair