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HomeMy WebLinkAbout1989-0024.Buttery.91-03-27 ON I'ARIO EMPLOYES DE LA COURONNE CROWN EMPI.. OYEES DE L 'ON TA RIO GRIEYANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 OUN~AS STREET WEST, SUITE 2';00. TORONTO, ONTARiO., MSG 'rZ$ TELEPHONE/T~£EPHoNE: {~ ~6] 325 lBO, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO]. MSG 7Z8 FACSIM~LE/TE[..~COPiE .. (4 ~6; 325- ;396 24/89 IN THE MATTER OF AN AI~ITRAT~ON Under . THE CROWN E~PLOYEES COLLECTIVE BARGAIN~N~ ACT Before THE GRIEVANCE SETTLEMENT BO/~.D BETWEEN OPSEU (Buttery) Grievor - a~d - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE: B. Kirkwood Vice-Chairperson T. Browes-Bugden Member M. O'Toole Member FOR THE R. Healey GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE M. Migus EMPLOYER Staff Relations Consultant Human Resources Branch Ministry fo the Attorney General HEARING: November 21, 1990 Page 2 o DECISION The grievor claimed that she was unreasonably denied short term sickness benefits pursuant to Article 52.1 of the collective agreement which states: An employee who is unable to attend to his duties due to sickness or injury is entitled to leave of absence with pay as follows: (i) with regular salary for the first six (6) working days of absence, (ii) with seventy-five (75%) of regular salary for an additional one hundred twenty-four (124) working days of absence in each calendar year. The grievor has been employed on a full time classified basis by the Ministry of the Attorney General since June 1, 1987. She is currently employed as a Courtroom and Records Clerk in the Provincial Court, Family Division in Oshawa. The grievor obtained maternity leave from August 8, 1988 to December 2, 1988. In a letter dated November 16, 1988 the grievor requested a three month 'unpaid leave of absence to extend her maternity leave from December 4, 1988 to March 3, 1989 inclusive. On November 23, 1988, the grievor's supervisor, Mrs. Mary Toman - the Court Administrator and Justice of the Peace, approved the grievor's request in writing and forwarded the approval to her by mail in accordance with article 50.5 of the collective agreement, which states: If requested in writing at least four (4) weeks prior to the date of expiry of her maternity leave, an employee shall be entitled to a leave-of-absence without pay of up to six (6) months. Page 3 The grievor delivered a large baby boy on September~ 12, 1988. As the grievor continued to be unwell after her delivery and was dissatisfied with the medical attention that she was receiving, she sought a second opinion from Dr. Leon Irish. Dr. Irish saw her on November 24, 198s and determined that the grievor had severe tissue and internal damage and required immediate emergency surgery. Dr. Irish arranged for a consultation with the surgeon later that evening and the grievor was operated on November 24, 1988 at 9:00 a0m. In the evening of November 24, 1988, the grievor, who, was very upset with the sudden turn of events contacted her friend and co-worker Josie Fogal and explained that she would be requiring emergency surgery. After the surgery, on Saturday, November 26, 1988, the grievor again contacted Josie Fogal and told her that the damage was more extensive than the doctors had expected and that she would be requiring further surgery. She was also upset that due to the medication that she received, she was unabl~ to breast feed her child for a day, and had to give her child to another nursing mother to feed. She was subsequently operated again on December 22, 1988 and later at the end of March 1989. The Office of the Provincial Court in Oshawa is a very small office and does not have many employees. On November 24, 1988, as the staff were leaving work, Josie Fogal told the staff about the grievor's situation. She believed the staff members included Marjorie Lee, Rena del Gobbo, Mary Toman and Stella Baxter, the Assistant Deputy Administrator. Page 4 , On the Monday, following Josie Fogal's second telephone conversation with the grievor, Josie Fogal recalled speaking again to Rena del Gobbo and Marjorie Lee and responding to various staff inquiries about the grievor's health. The grievor did not contact the office until January 9, 1989, at which time, the grievor contacted Mary Toman and asked her whether she was able to get short term sickness benefits (S.T.S.) . Mary Toman immediately looked into the matter and contacted Human Resources and advised the grievor that she was not entitled to the same. As a result of that response, this grievance was instituted on February 2, 1989 to obtain these benefits. The Union's counsel claimed that the right to sick pay benefits under article 52.1 is separate from the mandatory right to an extension of maternity leave if requested by an employee pursuant to Article 50.5. He claimed that the grievor was automatically entitled to S.T.S. pursuant to Article 52.1 of the collective agreement, as a result of illness. The Union's counsel claimed that the management knew that the grievor was ill and knew the extent of the grievor's illness, when Josie Fogal advised the staff including her supervisor, of the grievor's situation, prior to the grievor starting the extended maternity leave He asserted that the grievor withdrew her claim for the extended maternity leave, when management learned of her situation through Josie Fogal, and became entitled to the S.T.S. at the completion of her maternity leave. The Union's counsel submitted that although there was no bad faith on the part of management, management was Page 5 willfully blind to the grievor's illness and processed the grievor's request for extended maternity leave in a mechanical way. The Union's counsel argued that the grievor's situation was not like those situations in which the employee sought S.T.S. after leave had begun, as the grievor had become ill before her extended leave had started and the employer was aware of her condition. The Employer's counsel argued that although the grievor retains a right, which is not unfettered, to withdraw a request for leave, up to the time the leave is to begin, the grievor did not withdraw her request for leave prior to the leave commencing. Furthermore, even if the employer knew or ought to have known that the grievor was ill, by virtue of the office conversation, the employer could not rely upon rumours within the office to withdraw the request for leave for her. The Employer's counsel submitted that the purpose of the sick leave provisions in article 50.1, is to protect employee's income in the event that he or she is unable to attend to their official duties by reason of sickness or injury and to provide employees with greater benefits than they would otherwise be entitled under the ~mployment ~tandards Act. She argued that while the grievor was on extended maternity leave, the grievor was not in a position to suffer a loss of earnings, which was a prerequisite of entitlement under article 52.01 of the collective agreement. Therefore, S.T.S. benefits are suspended while an employee is on maternity leave and on extended maternity leave. Page 6 There was no issue that the grievor was ill. Nor was there any issue that the grlevor would be entitled t.n S.T.S if she was not on leave. Without a doubt, the grievor has gone through a very traumatic period after having experienced a difficult birth requiring emergency surgery on November 24, 1988 and further extensive surgery on December 22, 1988. In addition, she felt traumatized by having to have another nursing woman feed her child, when she was unable to breastfeed her child for a period of a day and a half, due to the medication she received during the operation. We accept the grievor's testimony that she was suffering both physically and emotionally during this period of time. We also understand that due to her situation, and the necessity to see her doctors in the week following the surgery, that she was not ~h~n~n~ ~ h~r ~mn]~vm~n~ status and its ramifications~ However, as much as we sympathize with the grievor's position, our jurisdiction is not to award damages or she has undergone, but to consider and apply the collective agreement. As stated in Haliday and The Min4$try of Industry and Tourism G.S.B. 94/78 (K.P. Swan): ...We should note that our jurisdiction is statutory only, and has two main branches. First, we are vested with jurisdiction to hear and to determine disputes about the interpretation, application, administration or alleged contravention of the collective agreement: this jurisdiction arises under s. 18 of the Crown Employees Collective Bargaining Act. Second, beyond that jurisdiction and independent of it, we have the jurisdiction set out in s. 17(2) [now s. 18(2)], quoted above. We have no authority to intercede between the parties; we do not have any inherent jurisdiction to do justice - or what we conceive to be justice - or to provide remedies, no matter how desperately a particular case may cry Page 7 out for relief. The Board is a creature of state, and derives its jurisdiction solely from the statute. The only exception to that rule is that the parties may provide for certain matters in a collective agreement, and our jurisdiction is thus broadened to the extent they have done so. Beyond this circumscribed jurisdiction, the Board's legal authority is non-existent, and any decision rendered beyond those limits would be a nullity and liable to be quashed before a court. The questions this Board must resolve are: 1) did the grievor withdrew her request for the extended maternity leave; and 2) if the grievor did not withdraw her request for the leave, is the grievor entitled in any event by virtue of her condition to the benefits under article 52.1 of the collective agreement, if she was on leave. There are several dangers to the Union's position that the grievor withdrew her request to take a further leave of absence through reliance on the information given to the office and to management. The first is that if we were to accept this claim, such a finding would effectively require the employer to make decisions affecting the employee based upon gossip and without first hand information. A decision that the employer may make may not conform with the facts nor with the employee's intention. For example, if the employer, upon hearing of the grievor's illness,and assuming that the illness was an accurate reflection of her state, terminated the grievor's request for leave, placed the grievor on S.T.S., to provide her with income thereby losing her right to any further extended leave, as any further request would be out of time, the grievor would have had to go back to work as soon as she was well. That decision may have been appropriate for one employee, but another may have wanted to Page 8 take the unpaid leave and be off work for that period of time, even if she were to get better in the interim. It would deprive the employee of control over the decision making process. Although the grievor had quite a few medical appointments in the week following her surgery, and had concerns other than whether she was to be paid, the grievor remains responsible for decisions affecting her status and neither the employer nor the Board should nor could take away the grievor's right to make these important decisions. However, it is therefore the grievor's responsibility to ensure that her decision is conveyed to the management. Alternatively, it would place an onerous burden on the employer to follow up any information that it may receive about an employee, to ensure that the information is accurate and the appropriate decisions are made. There is no provision in the collective agreement that provides that obligation and if the employer was to be placed in that position, it could easily lead to an invasion in good faith into the employee's private domain, in the employer's attempt to ensure that information which it receives is accurate. Therefore, we must consider what directions did the grievor give the employer. Pursuant to article 50.5, the grievor made a request for the extended leave, which was approved and processed on November 23, 1988. It was recognized by both parties that the employer had no discretion to refuse the request for leave if sought by an employee in writing as it was mandatory right. The grievor acknowledged that she received the approval during the week of November 28, 1988. She therefore had received the approval prior to the expiration o~ her maternity leave. Page 9 Josie Fogal testified that she spoke to the grievor as a' friend and learned of the grievor's situation. She spoke to the staff, which included Mary Toman. Mary Toman recognized that the' office was very small and the staff interacted on both a business and social level. However, although Mary Toman did not dispute that she may have been told of the grievor's situation, she did not recall learning of the grievor's situation, until the grievor visited her on January 9, 1989. In this case, the grievor's last direction was by written request for the extended leave. There was no evidence that she changed her mind and that she conveyed that information to management. The evidence is to the contrary. Josie Fogal testified that she was not given any direction to advise management that the grievor no longer wished to take the extended leave. Therefore, although we accept Josie Fogal's evidence that she advised the staff including Mary Toman and Stella Baxter of the grievor's situation, we do not find that that the grievor provided either Josie Fogal or her employer with authorization to cancel the request for leave. Therefore, we do not find that the grievor withdrew her request for unpaid leave. The second issue that this matter raises is to consider whether the grievor is entitled in any event, to sick pay benefits. There was no dispute that if the grievor 'were on maternity leave that the grievor would not be entitled to S.T.S. The foundation of this principle arises from the application of cases such as Tracey and the Crown in R~ht of Ontario (M~ni~try of Correc~ionsl Services) G.S.B. 137/78 Page 10 ~ (K.P.Swan), which canvassed the distinction between the differential treatment of "childbirth" on the one hand and "sickness or injury" on the other, and OPSEU(Conway et alt and the Crown in Right of Ontario (Ministry of Community ~n.1 Soc{~] Seivices) {Minlstry of Natural Resources) Ministry o[ Revenue) G.S.B. 1482/85; 1497/85; 1498/85; 1534/85; 0087/86 (D. Kates) which reviewed the development of maternity leave provisions, its relationship to the ~nlp]oyment Standards Ac~ and the place of S.T.S. AS of December 4, 1988, the grievor was on extended leave. The Union likened the grievor's position to the position found in OPSF. U (Lambert and Slaught) and the Right Qf Ontario (Ministry o~ Correction~ ] Services) G.S.B. #2615/86 (R.L.Verity) . In Lambert and Sl~ught (supra), the Board found that the entitlement to lieu days and the entitlement to sick pay benefits are independent of each other, and as there was no exclusion in the lieu day provisions to sick day benefits, the grievors were not prevented from applying for one or the other benefit. The Board recognized that the right to statutory holidays has moved from a privilege granted to the employees to almost a right of the employees, such that if the employer requires the employee to work on the statutory day, that employee is compensated and provided a lieu day. To not allow the employees to choose to apply for the sick pay benefits, would have had the affect of eroding the grievor's rights to the statutory holiday or compensation for its loss. The Board also found that the grievors were excused from their duties, not because of the compensation leave, but because of their illness. We find that Lambert ~nd Sl~ught case is different from the grievor's case in that it was the employer's actions and decisions that required the employees to work on the Page 11 statutory day thereby triggering the grievors' right to the lieu day. In the case before us, it was the grievor who chose to take the unpaid leave of absence and not the employer who required her to take it. It was the grievor who asked to be relieved of the obligation to work in exchange for relieving the employer of the obligation to pay her. As in l.ambert ~ Slaugh~ (supra) article 52.1 does not specifically exclude article 50.5 and there is no direct connection with article 50.5, nevertheless, in order to be entitled to the benefit under article 52.1, the grievor must still be able to meet the preconditions set out in the article. She must be unable to attend to her duties due to sickness or injury, if that were the case she would be' entitled to be compensated for her loss of earnings for the period that she was i1%, in accordance with the terms of article 52.1. Although the leave of absence which was considered in Tichinoff and the Crown in Right of Ontario {Ministry of CQrrec~ion~l Services} G.S.B. $ 900/88 (J.D.McCamus) was a discretionary leave and the leave being considered here is mandatory, the effect of the leave remains the same in that the employee is be excused from duties for a period of time and the employer is excused from the obligation to pay the employee for that period of time. As stated at page 17 of the decision: ...A person who has waived his or her right to earnings is not, in our view, in a position to claim entitlement to sick pay which, as the Board noted in l.ambert & Slaught, has as its purpose the provision of "earnings relief in periods of incapacity caused by illness or injury." p. 13. In the language of Article 52,1, sick pay benefits are extended to "an employee who is unable to attend to his duties due to sickness or injury..." An employee who has applied for and been granted a leave-of-absence without pay has no "duties" during Page 12 · that period. This indeed, may be said to be the point of the exercise. In this sense, we believe that the Grievor's claim to entitlement to sick pay benefits is inconsistent with the Grievor's status of being on leave-of-absence without pay. In this case, had the grievor been scheduled for work, the grievor's condition would have prevented her from performing her duties, but she chose to be excused from those duties when she requested the leave of absence. Therefore, as the grievor has been excused from her duties at work, due to her leave, she could not fulfill the prerequisite set out in article 52.1 of the collective agreement that she was unable to attend to her duties because of illness. Therefore, the grievor is not entitled to S.T.S and this grievance is dismissed. Dated at Toronto, this 21th day of March ., 199t. B.A. Kirkwood, Vice-Chairperson "Dissent" (without written reason) T. Browes-Budgen, Member M O'Toole, Member