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HomeMy WebLinkAbout1990-1172.Edmondsun.90-12-28 .. ~- n . _.~_....~. .~... _.~...... ~ ~ .. ,_ . -- . -. . -.. '-0.-_.' ~ . ~, - '"e-e- " , -...... .. , >' f / , \ : ) If. ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO 111111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ,.- 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARfO. M5G lZ8 TELEPHONE IT~LÉPHONE: (4161 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZ8 FACS/MILEITáÉcOPfE: (416) 326-1396 1172/90 IN THE HATTER OP AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Edmonds~~ Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE: M. Gorsky Vice-Chairperson I. Thomson Member M. O'Toole Member FOR THE M. A. Kuntz GRIEVOR Grievance Officer Ontario Public service Employees Union FOR THE M. Quick EMPLOYER Counsel Legal Services Branch Ministry of Health , HEARING: November 26, 1990 ,----." J . r \ J A DECISION The Grievor, Sandra Edmondsun, who is an IDS tr1lctor 2 - in the Independent Learning Section operated by the Employer at the London Psychiatric Hospital, located in London, Ontario, filed a grievance on June 18, 1990, claiminq that she had "been unjustly denied bereavement leave following the death of [her] mother-in-law" . The Grievor, after having been denied bereavement leave, was granted special compassionate leave without pay and the settlement requested by her was that she be "reimbursed for the half day [that] she used of discretionary leave." The facts in this case are not in dispute. It was agreed that the mother of the Grievor's common law spouse died on January 13, 1990. At that time, the common law relationship had been in existence for approximately two and one half years. The Grievor had a close relationship with both parents of her common law spouse which predated the commencement of the common law relationship, and the relationship was a close one. When the mother of the Grievor's common law spouse died on June 13, 1990, the Grievor requested bereavement leave under the collective agreement and was informed that she was not entitled to such leave under the bereavement leave provision because the provision was said no't to include the mother of a ! -..." ----. ~~----.._. IIf ' ~'- , .- .' <. . ) .-0 . '\i 2 cornman law spouse where the term "mother-in-law" was used in the ! relevant article. Following the stage two meeting on June 23¡ -' - 1990, J.T. Mercer, thè Administrator at the London Psychiatric Hospital wrote to the Grievor on July 25, 1990: . . . since the above-noted article [49.1J in the Collective Agreement does not address the issue of common-law relationship entitlements, I am not prepared to reverse management's decision, At the opening of the hearing counsel for the Ministry advised us that there was also a difference between the parties as to whether the now expired collective agreement between them from January 1, 1986 to December 31, 1988, or the current agreement covering the period January 1, 1989 until December 31, 1991 was the relevant agreement for the purpose of deciding the issue. The relevant article in both cases is Article 49,1. In the previous agreement that article is as follows: An employee who would otherwise have been at work shall be allowed up to three (3) days leave-of- absence with pay in the event of the death of his spouse, mother, father, mother-in-law, father-in- law, son, daughter, brother, 'sister, son-in-law, daughter-in-law, sister-in-law, bro":her:-in-law¡ grandparent, grandchild, ward or guardian. In the current agreement the identically numbered article is as follows: An employee who would otherwise have been at work , \ ' - 1 \ } ~ 3 s ha 11 be allowed up to three ( 3 ) days leave-of- absence with pay in the event of the death of his spouse, mether, father, mother-in-law, fat~1er- in- law] son, daughter, step'-son, step-da.ughter, brother, sister, son-in-law, da1.lghter- i 1";-1 d''''¡ , sister-in-law, brother-in-law] grandparent, grandchild, ward Or guardian. The difference between the two articles (49.1) is that the current agreement includes .4 step-son" and "step-daughter J " while the previous agreement does not. Counsel for the parties indicated to the Board that they regarded the changes made to Article 49.1 in the current agreement as not affecting the interpretation of the term "mother-in-law" found in both agreements. Counsel for the Employer argued that under the language of Article 49,1 of either agreement "mother-in-law" could only be given a restricted meaning and would mean the mother of a legal spouse and would no~ include the mother of a common law spouse, Ms. Kuntz for the Union argued that the language of Article 49,1 in both agreements ought to be given a broad interpretation so as to include the mother of one's common law spouse. 115, K~ntz also ar;ued that if the " +- +-, n lD'terpre_.3._.:.o.. suggested on behalf of the Employer was fo~nd to be the ~orrect "! , (") I r¡ ......... ~ ; I I 4 one by this Board then she was also relying on a newly introduced provision, Article A, which contains a heading "No Discrimination/Employment EQ:uity". The relevant part of the article, relied on by Ms. Kuntz, is A.l, which is as follows: ! There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, fami ly status, or handicap, as defined in section 9(1) of the Ontario Human Rights Code (OHRC) , 'The portion of Article A.l relied on relates to discrimination by reason of: "family status." Ms'. Quick, for the Employer, without admitting that Article A.l had any relevance to the grievance before us, submitted that it was also not applicable because the relevant collective a~reement for the purpose of deciding the issue before us is the previous one which contains no counter-part to Article A.l. Ms. Kuntz suggested that the Board hear the case in its entirety. That is, we would decide whether the current or the previous collective agreement applies to this case. We would then decide whether Article 49,1 should be given an expansive or restricted meaning. If we decided that it had a broad meaning so as to include a mother of an employee's commo~ law spouse, that I /-- --.., ) , ) I 5 would end the matter. If we decided that :l t had a narrov: meaning, so as to encompass only the mother of an employee's legal spouse, then we would have to dismiss the grievance unless we found that the relevant collective agreement was the current one. In that case, we would have to decide whether Article A,l has the effect of enlarging the meaning of,mother-in-law to include the mother of an employee's common law spouse. Ms. Quick submitted that as it might not become necessary to rule on the effect of Article A.l on Article 49.1, we should first hear argument as to whether Article 49.1 (because of the agreement of counsel that the changes made to Art,i c 1 e 49. 1 in the current agreement are i.rre I evant for the purpose of interpreting the meaning of the term "mother-in-law" ) should be given an expansive or narrow interpretation. If we found that the language was to be given a restricted meaning, apart from considerations of the effect of any other provisions of the collective agreement, we would have to dismiss the grievance. However, if the relevant collective agreement was the current one, we could then consider the effect of Article A,l cn the meaning of the term "mo-i:her-in-Iaw." After considering the representations made on behalf c: the parties, in the light of their agreement, we decided th~t we should first rule on whether the language of Article 49.1 was to be interpreted in an expansive or narrow manner, as the parties I ..~ ~ ~,...-. . ~ -.,. -- --:f .- "', I .- , , , J (~ 6 agreed that a finding that it was to be interpreted in an expansíve manner would end the matter. Accordingly, we heard argument restricted to the question: is article 49.1 (in both agreements) to be given an expansive or narrow meaning as it relates to the interpretation of the term "mother-in-law"? If it 'is to have an expansive meaning then the grievance would succeed. If it is found to have a narrow meaning, then we would have to reconvene to hear further argument as to whether the current or the previous collective agreement is the applicable one for. the purpose of adjudicating the grievance. If we found that the current agreement was applicable¡ then we would have to hear argument on the effect of Article"A.l on the meaning of the term "mother-in-law" in Article 49. 1. Because the parties took the position. for the purpose of our deciding the grievance, that the change in language in Art. 49.1 did not affect the issue before us, our decision does not have to deal with what the result would have been if the parties had not so agreed. That is, we are not to be concerned with whether the addition of the terms "step-son" and "step- daughter" in the current agreement might result in the bereavement leave provision in Article 49.1 in the previous agreement being given a different meaning from Article 49.1 ih the current agreeme~t. The parties furnished us with a number of cases which ---, , , \ ¡ " , 7 dealt with the question of whether a bereavement leave clause ought to be given a broad or restricted interpretation: Re tIe!'I:n~~_~_?) ec_troni c s Ltd. anUnternational Brotherhood of Electrical Workers, Local 1651 (1989) , 4 L.A.C. (4th) 257 (Kydd) ; Re Lakeview Development of Canada Ltd. (Shøraton Hamilton) and Textile Processors, Service Trades, Health Care Professional and TeChnical Employees Internªtional Union, Local 351 (1987) , 31 L.A.C. (3d) 85 ( Ha e f 1 i ng) ; Re Gen.:LÌre Ltd. and Canadian Automobile Workers, Local 199 (l9B7) I 31 L.A.C. (3d) 188 \ (Weatherill); Re Alberta Wheat Pool and Grain Workers' Ur.ion, Local 333 (1986), 27 L.A.C. (3d) a16 (Kelleher); Re Board of Health of Regional Municipality of Peel and Ontario Nurses I Association (1983), 9 L,A.C. (3d) 94 (Shime); Re Maple Ridge Hospital and Registered Nurses' Association of British Columbia (1979) , 23 L.A.C. (2d) 355 (Gill); !t~Southern A_~þ_erta Schoo 1 Authorities Association (County of Forty Mile No. 8)and and Alberta Teacherts Association (1981), 5 L,l\.C. (3d) 351 (Mason) . Of those cases, the following dealt with the interpretation of o~ the term "mother-in-law" or "father-in-law" in a bereavement leave provision as applicable to the mother or father of a common law spouse: lierm_~~ J Lakeview pevelClpmentJ Genaire Ltd '_1 Alberta Wheat Pool, M~nicipality of Peel, !~ple Ridge Hospital. The most recent case referred to (R~_~Her!!l~s J? 1 e~b~_~D,t::_~_ ;. td. ) contains a helpful analysis of the cases bearing on the issue, At page 259, the majority of the board noted that: , ~ ~'. ---. , , ! ) ~\ 8 "Generally speaking in all of these cases the arbitrator's award has been based on deciding whether to apply a narrow l.i tera I âpproach, or a broad 'purposive I approach to the bereavement entitlement clauses." The board noted a number of cases which had followed each approach and analysed the basis for decision in each of them (at pp. 259-262) . At p. 262, the majority of the board stated their conclusion upon a review of the cases: The foregoing review indicates that to some degree a consensus has evolved that in the absence of a restrictive definition as to entitlement arbitration boards will apply a liberal approach to bereavement leave provisions where the scope of the benefit is not clearly defined. In referring to Re Peel, the majority of the Board stated further at p, 262: It appears to this board, however, that the language in the collective agreement before us is restrictive in meaning. In that sense it is similar to the article interpreted in [Re Peel], in that it does not include words of general application, such as "immediate fami 1 y" , "immediate relative", "member of the househo Id ,. , As' in [Re Pee 1] , the collective agreement before us indicates an intent to narrow the situations where bereavement leave is granted.. We. note that agreement before us does nat include words of ge~leral application but narrows the situations where bereavement leave is granted. , "', r' . , l ) , 9 At page 263 of the Hermes case the majority of "the board stated: Reference was made by counsel for the union to a number of statutory provisions which give marital rights to common law spouses in various circumstances. No clear guidance can be derived from these provisions because of the wide variation in defining the period of time and circumstances necessary to establish a relationship that the law will recognize. It does reil ect to some degree the changing social attitudes as to who should be considered a spouse or husband or wife, Howevej:' , while society may have adopted a broader understanding of what is meant by "husband" or "wife' , we are not persuaded that the understood meaning of "father-in-law" or "mother-in-law" has changed with it. The term "father-in-law in art. 15.3 appears clear in meaning to this board according to common understanding, as not including the father of a common law spouse. Ms. Kun t z ; for the Union, referred us to the statutory definition of "spouse" in two statutes: The Family Law Act. 1986 S. 0, , 1986, cap. 4. as amended; and under Jhe Human Rights Ce,:",e; 1981 S. o. , 1981; cap. 53, as amended. In s. 29 of The Family Law Act, 1986, which is found in Part 3 dealing with Support ObI ígations, "spouse" is defined to inc 1 ude~: "a man and a woman who are not married to each other and have cohabited (a) continuously fo~ a period of not les~ than three years, or (b) in a relationship of some permanence, :. f ~h=}t are the natural or adoptive parents of a chili. ("Conjoint") . I ., . , .,. ", , . \ ! " . . 10 In the F~~llY Law _g~fo~m Act, '.l- is impçrta~t ~c ~ot6 1 '_ that the definition of spouse for the purpose of dealing with the matrimonial home does not include a common law spouse. In The Human Rights Code, 1981, ,. spouse" is defined in section 9 (1) (j) to mean: .., A person to whom a member of the opposite sex is married or with whom the person is living in a conjugal relationship outside marriage ("Conjoint") . As in the Hermes case, at p, 263, we cari find no clear guidance from these provisions which is', intended to establish particular rights under the respective statutes. In the case of Southern Alberta School Authorities Association, referred to by Ms. Kuntz, the board employed a purposive approach in holding that a "child" of a spouse referred to in a bereavement leave provision included a spouse's step-son by previous marriage. Although we are not required to consider the changes to Article 49. ~, it is of some interest that the ;arties, in amending Article 49.1, added two relationships which ar'3 not legal in nature: " step-son" and "step-daughter, " b....1": did net expand upon the meaning of ., illcther- i n-I aH" ::,:ld IF f?.ther--j,r:- I . , "- , . , 11 law" . In adding to the list of persons whose death would entitle an employee to bereavement leave, the parties also agr~ed, 1 f. Article 49.2 of the current agreement, to add ",3"unt" , ~~ lJ.I1C 1 e I. J "niece" or '. nephew" . Because of the agreement of the parties, neither of these changes need concern ~s. We would also observe that no cases decided by the Board were brought to our attention, nor was there any evidence presented dealing with the practice of the parties. In order to avoid any further delay in determining the issue, the parties should be prepared to argue the effect of Artic I eA. 1 on the meaning of "mother-in-l~lw" in Article 49,1 in the current collective agreement should we find that it is the applicable agreement. However, because of the agreement of the parties, we cannot entertain any submissions that the two articles are to be interpreted differently, except for the effect of Article A.1 on Article 49,1, should we find the current agreement to be the applicable one for the purpose of deciding this case. In summary, if the previous cpllective agreement is the applicable one for the purpose of deciding this case} then, for the ~easons ~bove stated, we would find that Article 49.1 i:.1. t;-~a t agreement does not cover a mother-in-law of an employee's comm~~ 1 a'ii spouse. . i ,'::::2'C"':."·':;:~·,~'t;':'~:';;';.S>,:o;;,::;';';'::' :,-, '..~L ··::\;X'~:::·;'2'/:'Ó',,¡.,::=;':~>-,;. ~';o ,.<', - ~~;,' - <,:~::;c,;P"~·;::~:'i.S.:~,;·'-:.:.:.:..±!t0~':';:~:.::-::<;i.Z::,,:., ~\~:':' ' :'\~~' 0';'" ~~~:~::.:",_.~....:,",~. . . -..~ "V, -:1 ... í. ,.. rD';?-' r0,',) ~ ~, -"--. - ., '. ~\ -.~ ,# \- 12 If the current collective agreement is the one applicable to this case, then, subject to the above comments, we would hear argument as to the effect of Article A.l on the meaning of "rnother--in-Iaw" in Article 49.1 of the current agreement. We reiterate: because of the agreement of the parties, this decision does not decide the issue of whether the changes made to Article 49.1, of the current collective agreement have the effect of changing the meaning of "mother in law" .as that term is found in the identically numbered article in both agreements. We wish to hear from counsel in order that a date can be set for the continuation of the hearing. Dated at Toronto this28th day of December, 1990. --.-'-_....-..~~- ;',,/:~ ~ ._ M~ ~_~0I".~~~~:_-ViceChalrperson : þ'-; -' ,.--'---- --- - ,.' ... ~ "".-, . .- ,,--, ~ -",-,~-,.......~.",- - . , - -. X-~.. :Phomson - Member ';;;;;' , 7 "(j ?,~ iI/o'Toole - Member -