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Home My WebLink About1989-0622.Mattison.90-01-04 ONTARIO EMI=LOY~$ DE LA COuRONNE ) CROWN EMRL 0 ¥E£$ DE £ 'ON TA RIO ; GRIEVANCE COMMISSION DE SETTLEMENT R~GLEMENT BOARD DES GRIEFS ~$0 DUNDAS .STREET WEST, TOP'ONTO, ONTARIO. M§G ~Z8. SUtTE 2'IO0 TE£EPHONE/T'~L~PHONE 180, ~RUE DUNOA$ OuEST, TORONTO, IONTAR~O~ MBG '~Z{~ - ~UREAU 2100 {416) 598-0688 622/89 IN TEE MATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BA/{GAINING ACT Before THE GRIEVAI~CE SETTLEMENT BOARD Between: OPSEU (Mattison) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: E. Ratushny Vice-Chairperson J. McManus Member A. Stapleton Member For the Grievor: K. Whitaker Counsel Ryder, Whitaker, Wright and Chapman Barristers & Solicitors For the Employer: J. Benedict Manager Human ReSources Management Ministry of Correctional Services Hea¢in~: November 23, 1989 DECISION Th~ Grievor is employed by the Ministry of Correctional Eervices as a Correctional Officer 2. She was injured on June 16, 1986 and subsequently was off work intermittently until July 2$th and then continuously after that date. An award was made by the Workers' Compensation Board. During the first sixty-five working days of her absence, which ended on October 7, 1956, the Grievor received her full salary pursuant to Article 54.2 of the Collective Agreement. In an earlier decision, this Board held that the same Grievor was entitled to her regular salary for the two holidays falling within this period pursuant to Article 54.2, In addition, she was entitled to eight hours pay or compensating leave for .each of these days under Article 19.2: Mattison (G.S.B.0228/87t. After the 65 day period, the Grievor was compensated for working days of absence pursuant to Article 52.1. In that earlier decision, the Board held that, during this subsequent period, the Grievor was entitled to receive holiday pay or lieu time pursuant to Article .19.2 but could not receive additional holiday pay under Article 52.1. From April 8, 1987, the Grievor qualified for coverage under the Long Term Income Protection Plan (L.T.I.P.) under Article 42. However, since the Workers' Compensation benefits exceeded those provided by the L.T.I.P. she began receiving an amount equal to 90 per cent of her salary directly from the Workers' Compensation Board. Ail o~ this is by way o~ background to the relevant eight-week period which commenced in early November, 19S8. At that time, the Grievor returned to the Metro East Detention Centre to perfor~ duties which, in the opinion of the W.C.B., were compatible with her medical condition. Arrangements were made by the Vocational Rehabilitation Department of the W.C.B. fox the ~rievor to work twenty-eight shifts of eight hours during · this eight-week period. Although the number of shifts was fewer than normal, the ~rievor performed the full range of required duties during the shifts which she worked. Unfortunately, she was only able to complete eighteen of the scheduled shifts because of her medical condition. The issue before us is whether the Grievor is entitled to receive holiday pay or compensating leave pursuant to Article 19.2 for the four holidays which fell within the eight-week period. Article 19, in part, provides: 19.1 Where an employee works on a holiday included under Article 48 (Holidays), he shall be paid at the rate of two ('2) times his basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7 1/4), eight (8), or the number of regularly scheduled hours as 'applicable. 19.2 In addition to the payment provided by. section 19.1, an employee shall receive either seven and one-quarter (7 !/4~ or eight (8) hours pay as applicable at his basic hourly rate or compensating leave of seven and one-quarter I7 1/4) oz eight lB) hours as applicable, provided the employee opts for compensating leave prior to the holiday. 19.3 When a holiday included under Article 48 (~olidays) coincides with an employee's scheduled day off and he does not work ~on that day, employee shall be entitled to receive another day o~f. Argument before us on the issue of whether or not the Grievor was entitled to holiday pay or lieu days centered around whether the Grievor was an employee who was '~working" during the eigh%-week period for the purpose of the application of' Article 19.2. Counsel for the Employer argued that the Grievor was not working as a normal employee since she continued to receive benefits from the W.C.B. during the period in question. The eight-week assignment was merely a phase of her medical rehabilitation to assess her capacity to cope with working conditions. Counsel for the Orievor took the position that the receipt of benefits from the Board was irrelevant since the Employer fell within Schedule 2 of Regulation 951 under the Workers' Compensation Act. This means that the 'Employer must reimburse the W.C.B. fully for benefits paid to the Grievor so that in reality, payment was 'coming from the Employer rather than the W.C.B. More importantly, the Grievor performed regular duties during the shifts which she worked. Her counsel cited Re North Bay Hospital and Ontario Nurses' Association (1976) 13 L.A.C. (2nd) 154, at p. 162, where Chairman Abbott stated: I must give the word "work" its ordinary and natural meaning, unless the context shows that some other meaning was intended. On its face the word is unambiguous. In its ordinary sense, "work" means the expenditure of effort. No argument was advanced-as to why this approach should not be applied to the facts before us. Moreover, the Employer received the benefit of the Grievor's work. If the Grievor had not worked the shifts in question another employee would have been paid to do so. Counsel for the Grievor pointed out that, during the period in question, the Grievor did receive a shift premium for working evenings during some of the shifts pursuant to Article 11.1.1. This provision refers to "hours worked" between 5:00 p.m. and midnight. Counsel for the Employer argued that these payments should be treated as being either erroneous or irrelevant to determining the true status of the Grievor. Counsel for the Employer relied heavily upon the earlier decisions of this Board in Mattison [supra) and Aubin 0515/88). in each of those decisions, additional holiday pay was denied beyond the 65 day, period referred to earlier. However, these cases are distinguishable since here the Grievor actually returned to work while in those cases the Grievors did not. Counsel for the Grievor also pointed out that the W.C.B. treated her as having returned to employment since her compensation during the eight-week period was calculated pursuant to section 40 (2) (a) of the Workers' Compensation Act, which provides: 40 (2) Where temporary partial disability results from the injury, the compensation payable shall be, (a) where the worker returns to employment, a weekly payment of 90 per cent of the difference between the net average weekly earnings of the worker before the injury and a net.average amount that the worker is able to earn in some. suitable employment or business after the injury; Of course, an assessment by the W.C.B. is not binding upon this Board. However, it ~does detract from the contention that the Grievor was not "working" in the ordinary sense but merely undergoing an assessment by the W.C.B. In our view, the Grievor must be considered to have "worked" during the period in question and is, therefore, entitled to the benefit of Article 19.2 of the Collective Agreement with respect to the four holidays in question. The Grievance is allowed. We will remain seized of. this matter in the event that there is any difficulty in implementing this award. DATED at Ottawa this 4th day of January, I990. Ed Ratushny, Vice-Chairperson J. McManus. Member A.G. Stapleton, Member