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HomeMy WebLinkAbout1989-0997.Stachiw, Union & Policy.91-08-29 ONTA RIO EMPLOYES DE LA COUFtONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS I~0 0UNOA$ STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1Za TELEPHONE/TELEPHONE: (4;6,~ 326-1~.88 ~eO, RUE DUNDAS OUEST, BUREAU 2100, TORONTO [ONTARIO). MSG 1Z8 FAC$IMiLE/T~L~_COPtE : (476) 326-1396 997/89, 1047/89 IN THE MATTER OF AN ARBiTI~TZON Under THE CROI~N F~4PLOYEE8 COLLECTIVE B~RGAINING ~CT Be~o~e T~ GR~EV~CE 8ETT~~ BO~ CUPE (Stachiw/Union Policy Grievance) G~evo~ ana - The Crown in Right of Ontario · (Workers' Compensation Board) Employer BEFORE: S. Stewart Vice-Chairperson J. Carruthers Member A. Merritt Member FOR THE B. Toop GRIEVOR National Representative CUPE Local 1750 FOR THE A. Rae EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING: April 5, 1991 DECISION A Union policy grievance dated June 26, 1989. and the individual grievance of Ms. S. Stachiw dated July 6, 1989 were before the Board. The issue raised by the grievances is whether the Employer is entitled to adjust an employee's continuous service date when an employee is absent and in receipt of long term disability benefits. Ms. Stachiw~s grievance also refers to an alteration of her seniority date and/or her anniversary date as well as her continous service date. Ms. S. Stachiw is employed as a medical secretary at the Thunder' Bay regional office of the Workers' · Compensation Board. She commenced her employment with the WCB on October 20, 1986. She was involved in a motor vehicle accident on March 29, 1988, and was absent from work as a result of that accident until November 22, 1988. Between November 22, 1988 and September 11, 1989, Ms. Stachiw returned to work on a part-time basis on rehabilitative employment. She increased her working hours gradually until she worked approximately one-half time. Ms. Stachiw was on maternity leave between September 12, 1989 and March 12, 1990. She was on vacation between March 12, 1990 and March 30, 1990. Ms. Stachiw returned to work on a full-time basis on 2 April 2, 1990. MS. Stachiw would ordinarily have been eligible for. advancement on the salary grid on April 20, 1989. While the Employer initially adjusted Ms. Stachiw's anniversary date by 157 days, this adjustment was subsequently recognized by the Employer as incorrect and she was to have advanced'on the grid effective the date of her return to full-time employment. ~t was Ms. Stachiw's evidence that she was not advanced on the grid until April 22, 1990. As well, it is the Union's position that Ms. Stachiw should have advanced on the grid for the purposes of th.e compensation that she was receiving at the time of her ~nniversary date. Ms. Stachiw's continuous service date was adjusted by 157 .days, from October 20, 1986 to May 27, 1987. This change affected Ms. Stachiw's vacation enti=lement. Ms. Scachiw's seniority date was not affected. Ms. Stachiw received notice of this matter by letter dated June 8, 1989. The letter states as follows: CONTINUOUS SERVICE DATE ADJUSTMENT In accordance with Article 4.1 of the Collective Agreement, this is to advise you that your 'Continuous Service Date has been adjusted to reflect a break in your continuous service. This break in service was caused 'by your absence from work, without pay from the Employer, for 157 working days during the 1988 calendar year. Your Continuous Service Date has been adjusted from October 20, 1986 to May 27, 1987. 3 Since vacation entitlement at the next higher level is based on continuous service of the employee with the employer, the date used to determine when you would qualify to begin accruing vacation credits at the next highest level has been delayed by the amount of the adjustment outlined above. Ms. Stachiw filed her grievance on July 6, 1989. She subsequently received a further letter from the Employer with respect to further adjustments made with respect to the 1989 ualendar year. It is the Union's position that an adjustment to the continuous service date in these circumstances is in contravention of the ~rovisions of the Collective Agreement between the parties. It is the Employer's position that such an adjustment is required by the provisions of the Collective Agreement. The Employer relies on the past practice and negotiating history of the parties as an aid to the interpretation of the language of the Collective Agreement. Alternatively, it is the Employer's position that the Union is estopped from asserting the position it advances in this proceeding by virtue of its failure to challenge the Employer's position in the past. Leaves of absence are provided for in Article 16 of the Collective Agreement that was in effect at the time the grievance w~s filed. Sick leave is referred to in Article ~6.O8 which states that~ "The.current practice concerning sick leave shall be continued for the duration of this 4 Agreement, where it does not-conflict with the provisions of this Agreement." Article 16.10 provides that: With the exception of section 7, Maternity Leave of Absence and Section 9, Adoption Leave, where absence under this article is without pay,' there shall be no accumulation of service or attendance credits. "Service" is not specifically defined in the Collective ~Agreement, however seniority is defined in Article 4.01 as "the length of continuous service in the bargaining unit". ~--~. Article 4.03 of the Collective Agreement provides for loss of seniority and continuous service in certain specified instances, such as termination of employment. Long term disability insurance is referred to'in Article 21 of the Collective Agreement as an employee benefit and is referred to further in'Appendix 3 of the Collective Agreement where the provisions of the plan are detailed. There is no explicit reference in the provisions of the Collective .. Agreement to the effect of long term disability on continuous service. Article 11 of the Collective Agreement deals with vacations and Article 11.01 provides that: The calculation of vacation leave and vacation pay entitlement, will be based on the employee's continuous service from his most recent date of hire, and shall be computed as of his anniversary date and each anniversary date thereafter. Article 11.03 (e) of the Collective Agreement provides that: Notwithstanding the above, accumulation of vacation entitlement shall not be earned for any unpaid continuous absence of twenty-three (23) consecutive working days. Where intermittent return to work is less than five working days, the absence ~hall be considered continuous for the purposes of these calculations · Schedule A of the Collective Agreement contains a salary grid for employees in the grievor's classification, with advancement based on the anniversary date. Article 1 of Schedule A provides that: "The anniversary date is based on the date the employee commenced on the current job. This may be either the date of hire or the date of a subsequent transfer." Article 2 of Schedule A goes on to provide that the time periods referred to on the salary grid are reflections of the anniversary date. In accordance With the provisions o.f ~he Collective Agreement Ms. Stachiw was in receipt of payment from the Employer for the first sixty days of her absence based on accumulated attendance credits. Long term disability commences after sixty days of absence. Between sixty and ninety days of absence and two-thirds of the employee's salary is paid directly by the Employer. For absences extending beyond ninety days, as was the case with Ms. Stachiw, two-thirds of the employee's salary is paid by the Employer' s insurer. There was some suggestion in correspondence from the Employer to the Union and in the submissions of the Union that the only period in which continuous service is affected is the period in which an employee is in receipt 6 of long term disability benefits from the insurer. However, according to Mr. Baldwin's evidence in re- examination, for the first sixty day period an employee's continuous service is adjusted based on the number of days that the employee does not have attendance credits. For the period between sixty and ninety days there is an adjustment of one-third of a day for each day that attendance credits are not used to top up the two-thirds salary. For the period between sixty and ninety days, the . adjustment is based on one day for each day of absence unless the employee still has and uses attendance credits, in which case there is an adjustment of two-thirds of a day. In Ms. S{achiw~s case, this calculation resulted im what might be described as a debit' of 167.25 days. However, there is a grace period of ten days, which resulted in the advancement of' Ms. Stachiw's cohtinuous service date by 157 days for 1988. The Board's understanding of the dispute put before it for resolution with respect to the adjustment 'to the continuous service date is limited to the actions that the Employer takes with respect to adjustment to the continuous service date while an employee is in receipt of long term disability benefits from the insurer. Both the Union and the EmplOyer adduced evidence with respect to the practice at the workplace with respect to ? the effect of absences on continuous service. Mr. E. Baldwin has been employed in the position of Employee Relations Specialist with the WCB since I978. He is responsible for the administration of the Collective Agreement and has been a member of the Employer's bargaining committee since 1978. Mr. Baldwin testified that he was involved in making the adjustment to Ms. Stachiw's continuous service date and that he did so in accordance with the same practice that he has used since 1978. Until Decemer, 1988, an employee's seniority date was also adjusted, a matter which will be discussed in more detai~ below. Mr. Baldwin stated that in January of each year he goes through the process of adjustment for each calendar year as described with respect to Ms. Stachiw. Since 1986 he has sent individual letters to employees, similar to the letter sent to Ms. Stachiw which is referred to above. Mr. Baldwin estimated that he sent 80 to 100 such letters per year since 1986. Copies of these letters are not sent to the Union. Prior to 1986 it appears that notification to employees and the Union with respect to such adjustment was accomplished by the posting of the seniority list. The Union was also provided with a list of employees who are on leave of absence. Mr. Baldwin gave evidence with respect to four 8 grievances that were filed in connection with this issue. Three grievances were filed in 1978 and one grievance was filed in January, 1988. Ail of the grievances filed in 1978 refer to an improper seniority date being posted. Two of the grievances arose with respect to an absence while ~ployees were on maternity leave and one arose due to an absence on long term disability benefits. The grievances were denied by the Employer and were not pursued by the Union. There was no provision comparable to the current 16.10 in the Collective Agreement at that time, however it appeared in the 1980-1 Collective Agreement. The maternity leave provision of the 1980-81 Collective Agreement was amended to state that: "Employees shall continue to. accumulate seniority and service benefits during maternity leave". 'Subsequently, a simila.r specific reference to adoption leave was incorPOrated into the Collective Agreement as well. In 1988, a grievance was filed by Ms. G. Cornet who was absent from work and in receipt of long term disability benefits. Her seniority and .continuous service dates were adjuste~ as a result. Mr. Baldwin stated that his recollection was that the Union expressed concerns about the adjustment to her seniority in connection with this grievance. He was uncertain as to whether the issue of continuous service was discussed. The Employer replied to 9 the grievance objecting to its timeliness and further indicating that it was the Employer's view that its actions were in accordance with the provisions of the Collective Agreement. In the second and third step reply there is a reference to the Employer's actions being in accordance with its longstanding practice. The matter was referred to arbitration. However, by letter dated September 2, 1988 the grievance was withdrawn by the Union. There was no reason given for the withdrawal of the grievance nor was the withdrawal of the grievance stated to be "without prejudice". Mr. Baldwin skated that by virtue of the fact that the union did not pursue the matter of continuous service he concluded tha~ the Union accepted the Employer's interpretation of the Collective Agreement. He stated that if the Employer had been aware that the Union was challenging the manner in which continuous service had been dealt with it would have raised the matter at negotiations in order to preserve its position. Ms. C. Haffenden testified on behalf of the Union. .She is an employee of the WCB and has been involved with the Union since 1976. She has been on the executive board of the Union since 1979. At the time of the grievance she was president of the Local Union. Ms. Haffenden testified that she was not aware of the grievances that were filed in 1978. She stated that the Cornet grievance in 1988 was 10 withdrawn because it was untimely by a few months and that it was the Union's view that it was appropriate for the issue of seniority to be discussed with the Employer. Ms. Haffenden stated that from the Union's perspectiv~ seniority and service were "the same thing". She stated that it was only in connection with the present grievances that the Union came to understand that the Employer viewed them differently and that the Employer's adjustments to continuous service dates affected vacation entitlement. Following the withdrawal of the Cornet grievance there was correspondence between the representatives of the parties with respect to this matter. In a letter dated December 5, 1988, Mr. M. Charboneau, a staff representative with the Union, advised the Employer that it was the Union's position that an employee should not suffer a break in seniority for any period of time when in receipt of long term disability benefits and that the Union did not agree with the way the Employer was administering the Collective Agreement. By letter dated December 7, 1988, Mr. B. Homer, Manager, Staff Relations, responded that the Employer had been administering the Collective Agreement in this manner since 1978, with full knowledge of the Union and requested the Union's authorization in writing if it wished the Employer to change this practice. Mr. Charboneau responded by letter dated January 9, 1989, in which he stated that: 11 "the Union only became aware of the extent of .[the Employer's] practice with the Cornet grievance". The letter goes on to state that: "no adjustments to an employee's seniority should be made for any period of time when they are in receipt of LTD benefits. Since this matter was brought to your attention on December 5, 1988 the union will not insist on any readjustments prior to this date". Service was not addressed. As previously indicated, Ms. Haffenden stated that the Union only became awar~ that the Employer distinguished between continuous service and seniority in the context of the discussions surrounding the present grievances. She stated that in the course of discussions with the Employer it became clear that the Employer was adjusting continuous service dates, affecting vacation entltlement, as a result of absences on long term disability. Following a meeting to discuss the Union's policy grievance, in a letter dated July 12, 1989, Mr. Homer wrote a letter to the Union requesting written confirmation with respect to its position with respect to accumulation of seniority. Mr. Homer distinguishes between seniority and service.credits in this letter. In a letter dated September 15, 1989 Ms. J. Bruce replied to Mr. Homer, referring to the earlie~ correspondence from Mr. Charbonneau and advising him that it was the Union's position that entitlement to vacation leave was not properly affected by a leave when the employment relationship continues. We will deal first with the issue of advancement on the salary grid. As previously noted, the Employer did not consider the grievor's absence on sick leave to .affect her anniversary date and thus her progression on the salary grid. However, it was the Employer's position that it does not affect an employee's rate of pay until the time that the employee returns to work on a full-time basis. Schedule A of the+ Collective Agreement is clear in providing that the advancement of an employee is determined on the basis of that person's anniversary date. There is no restriction, implicit or explicit, with respect to the determination of the anniversary date of an employee for the purposes of advancement on the grid. However, the provisions relating to the payment of long term disability benefits state that LTD benefits are based on: "the employee's gross regular salary as of the date of the disability". Accordingly,. it is clear that if an employee's anniversary date coincides with the time at which 'the employee is totally disabled and .is off work in receipt of LTD benefits, those benefits are not increased by virtue of the employee's anniversary date. The provisions of the Collective Agreement relating to LTD benefits go on, however, to deal with the situation where 13 an employee returns to work on rehabilitative employment and provide that: "LTD will provide 66-2/3 of normal salary less 50~ of rehabilitative employment earnings." In our view, the employee's "normal salary" for the purposes of LTD is fixed by the earlier provision specifically quantifying LTD benefits as the employee's gross regular salary as at the date of the disability. However, there is no restriction with respect to rehabilitative employment earnings that an employee receives when returning to work for the Employer. Given the unrestricted language of the Collective Agreement with respect ~o advancement on the grid and the fact that there is no logical reason that an employee who returns to'work on rehabilitative employment should not advance on the grid on her anniversary date in terms of compensation, it is our conclusion that the Employer's compensation of Ms. Stachiw for the work that she performed when she returned to rehabilitative employment is a violation of the Collective Agreement. In o~r view, the extrinsic evidence adduced establishes neither an ambiguity or an estoppel in this regard. While the Collective Agreement has been administered in this manner for some time, this would not appear to be a situtation where a large number of employees would be affected. We cannot accept that it is reasonable to expect the Union to have been aware of the practice. It 14 is most unlikely that all employees in receipt of long term disability benefits would have returned to rehabilitative employment with the Employer. Of those who would have returned to work, only some would have had an anniversary date at the relevant time. Accordingly, it is our conclusion that Ms. Stachiw ought properly to have advanced on the salary grid in accordance with her anniversary date and paid in accordance with that increased rate for the hours of work that she performed for the Employer while performing rehabilitative employment. However, in accordance with Appendix C of the Collective Agreement, Ms. Stachiw's LTD benefits are reduced by the amount that her total earnings exceed 100% of her earnings at the time of her disability. We now turn to the issue of whether an. employee's continuous service is appropriately adjusted for purposes of vacation leave and vacation entitlement when an employee is in receipt of long term disability payments. critical question under the language of the Collective Agreement is the meaning of "continuous service" under Article i1.O1 of the Collective Agreement. We cannot agree with Mr. Toop's submission that Article 4.03, dealing with the loss of seniority and continuous service is of assistance. The issue here is the accumulation of service rather than the loss of service. Article 16.10 addresses the issue of accumulation of service and provides that, aside from certain specified exceptions, "where there is absence under this Article without pay, there shall be no accumulation of service". Accordingly, the issue to be determined in this case is whether Ms. Stachiw's absence is properly characterized as an absence without pay. It is our view that a plain reading of the provisions of the Collective Agreement compels the conclusion that Ms. Stachiw's absence while in receipt of disability benefits from the Employer's insurer is properly characterized as an absence with pay. Aside from the fact that for a portion of the period of the time that she was paid by the insurer, during the period of her rehabilitative employment, she was also pai. d directly by the Employer for work performed for the Employer, the payments that she received from the insurer were paid by the insurer pursuant to the Employer's obligation established by the Collective Agreement. An analagous situation was before this Board in Sears 1129/86 (Picher), in which the issue was whether an employee off work and in receipt of workers' compensation benefits was "on leave with pay" for the purposes of accrual of vacation' credits. In that case, the Board concluded that the grievor was on leave with pay. The fact that the funds that the employee received in that instance 16 were not directly from the employer and that the employee was not~ in receipt of his- full salary did not deter the Board from reaching that conclusion. In Dupuis, 1335/86 (Knopf) the Board followed Sears in concluding that an employee who was off work in receipt of workers' compensation benefits was on leave with pay for purposes of vacation entitlement. It is our view that the language of the Collective Agreement as well as the decisions of this Board support the conclusion that employees who are off work in receipt of long term disability benefits from the Employer's insurer in the. circumstances Of Ms. Stachiw are on leave with pay~for the purposes'of Vacation entitlement. While, as Ms. Rae. emphasized, sick leave is not specifically enumerated.as one of the kinds of leave that will not affect continuous service in Article 16.10, the provisions of the Collective Agreement clearly contemplate accumulation of service in circumstances of paid leave, other than the two specific types of leave referred to explicitly. It is our conclusion that the leave of an employee when in receipt of long term disability benefits from the Employer's insurer falls squarely within the exception of leave with pay within the meaning of the Collective Agreement. It is also our view that the provisions of the Collective Agreement in this regard are 17 not patently ambiguous. Nor can we conclude that they are latently ambiguous when they are considered in light of the extrinsic evidence that was adduced° We will now address the issue of estoppel. Ms. Rae relies on thelongstanding and open practice of the Employer with respect to adjustment of service for vacation purposes for employees who are in receipt of long term disability benefits in support of an estoppel. As welI, she relies on the changes in the language of the Collective Agreement which, in her submission, reflect an understanding on the part of the Union that there is a distinction between Seniority and service. The manner in which the Employer has administered the Collective Agreement for a number of years is significant. Even accepting that the Union was not aware that the Employer was making adjustmenps to continuous service date affecting vacation entitlement, this does not dispose of the estoppel argument. As the decisions referred to us by Ms. Rae indicate, arbitrators'have found the representation necessary for the establishment of an estoppel where the party against whom the estoppel is alleged ought reasonably to have been aware of the practice of the other party. The appropriate considerations are perhaps best expressed in Board of Commissioners of Police for the Cit~ of Owen Sound (1984) 14 L.A.C. (3d) 46 (Picher) at p.58: ... I am satisfied, given the figures which were at all time available to the association that it reasonably should have known how art. 14 was being applied. To put it differently, for many years the association had constructive notice of the employer's calculation of sick- leave credits. It would be inequitable to let it now assert the rights of an ignorant party which has just discovered a violation of its rights. The board of commissioners has relied on the acquiescence of the association, and has accordingly geared its financial planning and expectations for the life of the current collective agreement. The Employer's interpretation of the Collective Agreement has been reflected in a practice that was carried out .openly for many years, since 1978. While the infonnation provided to employees and the Union in terms of the seniority list and the listing of persons on leave of absence did not initially specifically indicate that vacati6n entitlement would be affected, the Union has been well aware, as evidenced by the grievanc.es in 1978, that seniority was affected'. Given the Employer's open practice and the Union's equation of seniority with service in light of the clear reference to service in the vacation pay provision of the Collective Agreement, the Union ought reasonably to have been aware of the Employer's practice. We note, in this regard, that one of the grievances in 1978 dealt specifically with an absence on long term disability in the context of seniority. In 1988, when the Cornet grievance was filed, again a grievance arising out of an 19 absence on long term disability benefits, the Employer had been sending out letters explicitly referring to the effect of absences on vacation entitlement for two years. While Mr. Charbonneau subsequently made the Union's positio~ clear with respect to accumulation of seniority when on LTD, this was done during the term of the Collective Agreement under which the present grievances arise. As in the Owen Sound case, supra, the matter has financial implications for the Employer. In this respect the Union's assertion of its strict legal rights in light of an open and unchallenged practic9 that the Union ought reasonably to have been aware of results in a detriment to the Employer. In ordinary circumstances, where a finding of estoppel is made during the currency of a Collectitve Agreement, the appropriate remedial order is that the Union is estopped from asserting its rights under the Collective Agreement until its expiry, to provide the Employer with the opportunity to raise the matter at negotiations in order to preserve its position. In this case, however, since the filing of this grievance, the parties have entered into a new Collective Agreement. The new Collective Agreement was signed on October 24, 1990. The Employer did not specifically raise the issue of the effect of an absence on vacation 20 entitlement at negotiations. It was Mr Toop's submission that if the Board were to find an estoppel, it should conclude that following the filing of this grievance and Ms. Bruce's letter of September 15, 1989, the Employer was clearly on notice of the Union's position and had an' obligation to raise that issue at the last set of negotiations. We agree with this submission.. We cannot accept Ms. Rae's submission that the Union's notice was in any way · ambiguous or unclear. According to Ms. Haffenden's uncontradicted evidence, the Union's.objection to the Employer'~ practice with.respect to adjustment o~ service and its effect on vacation entitlement in the context of an employee on long term disability benefits was specifically raised in the context of the Stachiw grievance. As Ms. Rae points out', Ms. Bruce's letter of September 15, 1989 does no% specifically refer to employees in receipt of long term disability benefits. Mowever, the letter clearly covers such situations and the Union had expressed its position in connection with the Stachiw grievance. It is our view that after the filing of the Stachiw grievance and the September 15, 1989 letter from Ms. Bruce, the Employer was on notice that the Union was objecting to the Employer's longstanding practice. This notice was provided to the Employer prior to the parties entering into the successor Collective 21 Agreement. Having been put on notice of ~he Union's ~:~osition and having failed to pursue the rt~tter at negotiations, the estoppel upon which the Employer was entitled to rely in defense to th9 Union grievanoe and Ms. Stachiw's grievance must be found to have come to an end. The grievances are allowed in part. For the foregoing reasons it is our conclusion that the Employer violated the Collective Agreement in delaying Ms. Stachiw's advancement on the salary grid. She was entitled to be compensated at her new rate at the time of her anniversary date for the hours worked after her return to rehabilitative employment and subseqently. Her payments are to be recalculated and she is to be compensated accordingly. It is also our conclusion that the Employer has violated the Collective Agreement in adjusting an employee.'s continuous service for " purposes of vacation when an employee is off work in .receipt of long term disability benefits paid for by the EmploYer's insurer. However, for the reasons outlined ,above, it is our conclusion that the Union is estopped from relying on its strict legal rights during the term of the Collective Agreement under which the Union grievance and · the grievance of Ms. Stachiw arose. However, that estoppel ended on October 24, 1990, the time a new Collective Agreement was entered into. 22 The Board will remain seized in the event that the parties experience any difficulties wi%h respect to the implementation of this decision'. Dated at Toronto, this Z~'hday of August, 1991 S. L. Stewart - Vice-Chairperson A. Merrit - Member