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Home My WebLink About1988-1323.Correia et al.89-07-17 ONTARIO EMPLOYES DE LA COURONNE CROWN EMP£OYEE~ DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/T~'I,.~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 - BUREAU 2100 (416) 598-0688 1323/88 IN THE HATTER OF AN AREITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Correia et al) Grievot - and - The Crown in Right of Ontario (Ministry of Health) Employer Before: M.V. Watters Vice-Chairperson J, McManus Member M, O'Toole Member For the Gtievor: L. Rothstein Counsel Gowling & Henderson Barristers & Solicitors For the Employer: E. Hipfner Staff Relations Officer Management Board of Cabinet Hearings: May 8, 1989 DECISION This proceeding arises from the grievances Of K. Correia, L. Graham, S. 3ohnston, R. Lutz add S. Wells, all dated November 29, 1988. The facts leading up to the grievances were not in dispute and may be briefly stated as follows: (i) The grlevors are employed in the Kingston, Ontario office of the Ministry of Health. While their positions differed, all were classified at either the OAG 6 or OAG 8 level at the time of the grievances. (ii) Each of the grievors commenced maternity leave in 1987. Their Supplementary Unemployment Benefit, which was provided pursuant to article 50 of the collective agreement, was calculated on the basis.of their weekly rate of pay as received on the last day worked prior to the commencement of the maternity leave. For these grievors, this naturally meant that the contractual benefit was premised on 1987 wage rates. (iii) In late 1988, the employer and the union concluded an agreement with respect to increased wage rates for the classifications affecting these grievors. The new rates were made retroactive to January I, 1988. The employer did not subsequently adjust the supplementary unemployment benefit being received by the grievors to take into account the increased rates. It appeared to adopt the position that an adjustment would only be made if the last day worked coincided with or followed the effective date of the increase. ConverBely, the grievors were of the opinion that the language of article 50.7 of the collective agreement entitled them to the benefit of any retroactive salary adjustment. This difference led to the filing of the grievances now before this Board. The relevant provisions of the collective agreement read: -1- 50.3.1 An employee entitled to maternity leave under this Article, who provides the employer wi~h proof tha~ she had applied for and is eligible to receive unemployment insurance benefits pursuant to Section 30, Unemployment. Insurance Act, 1971, shall be paid an allowance in accordance with the Supplementary Unemployment Benefit Plan. 50.3.2 In respect of the period of maternity leave, payments made according to the Supplementary Unemployment Benefit Plan will consist of the following: (a) for the firs~ two (2) weeks, payments equivalent to ninety-three percent (93~) of the actual weekly rate of pay for her classification, which she was receiving on the last day worked prior to the commencement of the maternity leave, and (b) up to a maximum of fifteen (15) addltional weeks, payments equivalent to the difference between the sum of the weekly UI benefits the employee is eligible to receive and any other earnings received by the employee, and ninety-three percent (931) of the actual weekly race of pay for her classification, which she was receiving on the last day worked prior to the commencement of the maternity leave. 50.7 No~vithstanding 50,3.2(a) and (b) and 50.3.3, e'ffective January 1, 1984, the Supplementary Unemployment Bene£it shall be based on the salary the employee vas receiving on the last day worked prior to the commencement of the maternity leave, including any retroactive salary adjustment to which she may become entitled. At the outset of the hearing, counsel for the employer raised a preliminary obje'c'tion as to the arbitrability of the grievances. It was submitted that the very issue being presented to the Board had previously been the subject of an award in Conway, 1482/85, 1497/85, 1498/85, 1534/85, 0087/86 (Kates). That panel of the Board, having an identical set of facts before it, found that article 50.7 was not intended to benefit those employees who had commenced maternity leave prior to the effective date of the retroactive increase. It further determined that the differential treatment accorded to employees under article 52, this being the sick leave provision, did not constitute a form of discrimination under section 4 of The Human Rights Code. Counsel therefore suggested that, the union was attempting to relitigate an issue in a manner that was inconsistent with this Board's award in Blake et al., 1276/87, 1362/87, 1858/87, 1887/87, I888/87, 1889/87, 1890/87, 1891/87, 1892/87, 2292/87 (Shime). Spec£fically, it was argued that "exceptlonal circumstances" did not exist so as to justify a review of the earller award. Counsel for the union agreed that both the facts and issue as found in Conway were indistinguishable from this case. She asserted, however, that the panel in Conway erred in the following respects: (i) it misconstrued the words "on the last day worked prior :o the commencement of :he maternity.leave" aa found in article 50.7 of the collective agreement. It was counsel's submission that this language simply serves to "peg" the salary rate for purposes of calculating the Supplementary Unemployment Benefit and that it did not preclude an upward adjustment of same in the event of a .retroactive wage increase. She further asserted that the hoard had placed undue emphasis on the union's failure to address the meaning which should be attached to this phrase. It ...... was her assessment that the union argument in Conwa~ did not mean that the phrase should be "obliterated" from the body of the article; -3- (ii) the Board misconstrued the mischief that article 50.7 was intended to remedy. Counsel asserted that the mischief which the article sought to avoid affected all employees on maternity leave rather than only those whose last day of work coincided with the increase; (iii) the Board did not give sufficient effect to the phrase "including any retroactive salary adjustment to which she may become entitled". Counsel argued that this language should not be restricted to employees whose maternity leave followed the effective date of the retroactive increase; (iv) the Board failed to address the discriminatory effect consequent upon a differential application of articles 50 and 52 of the collective agreement. Rather, it appeared preoccupied with a comparison of the entitlements under the former article and the Employment Standards Act. The Board has thoroughly reviewed the award in Conway. We are in substantial agreement with both the reasoning employed therein and the result obtained. More specifically, we concur with the interpretation placed upon article 50.7 of the collective agreement and with the concluslon that the differential application of the maternity leave and sick leave provisions does not constitute discrimination for purposes of the Human Rights Code. If the union wishes to ensure equal treatment of employees under both articles 50 and 52 of the.collectlve agreement, the more appropriate course given the Conway award would be to seek such result through the negotiations process. -4- The Board also notes the comment of Chairman Shime in Blake to the following effect: "Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sic on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages a multlplicity of proceedings and arbitrator shoppin$ which in turn creates undue administrative difficulties in handling the case load. We are mindful, however, that there is no provision for appeal and there are limits to judicial review. While it is our view that the "manifest error" theory is too' lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might to be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances." (Pages In this instance, this panel of the Board was in essence asked to "overrule another panel" and to "sit on appeal" on the decision of an earlier panel. We are not inclined to engage in such an exercise given the approach articulated in Blake. Finally, we conclude that in the circumstances of this case, the union has not established either "manifest error" or "exceptional circumstances." -5- For all of these reasons, the preliminary objection of the employer is sustained and ~-he grievances are dism/ssed. Dated at Windsor, Ontario, this 17 day of July , 1989. M, V. Watters, Vice-Chairperson ~ TOo ~ber-" -6-