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Home My WebLink About1990-1369.Woronchuk.93-03-01 '.7 . .'t ONTARIO EMPLO yts DE LA COURONNE 'i I:· CROWN EMPLOYEES DE L'ONTARIO " [I -.. 1111 GRIEVANCE . COMMISSION DE .. SETTLEMENT REGLEMENT BOARD . DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G IZ8 TELEPHONE/TELEPHONE: (~16J 326- :J88 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZ8 FACSIMILE/TELECOPIE: (~'6) 325-J396 1369/90 IN THE HATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Woronchuk) Grievors - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE: A. Barrett Vice-Chairperson M. Lyons Member M. O'Toole Member FOR THE A. Ryder UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE K. pitre EMPLOYER Counsel Genest Murray DesBrisay Lamek Barristers & Solicitors HEARING January 4, 1993 · D E CIS 1 ION ,. ,. This decision concerns an interpretation of two articles contained in the collective agreement which expired on December 31, 1991. Mr. Woronchuk was absent from work by reason of an injury for which an award was made under the Workers' Compensation Act for a total of 53 days J.n late 1989 and early 1990. Three statutory holidays' fell within that period, being Christmas, Boxing Day and New Year 1 s Day. Mr. Woronchuk works a regular Monday to Friday work week and is never scheduled to work on s~atutory holidays. If Mr. Woronchuk had been at work throughout. the relevant period of time, he would have received 53 days' pay, comprised of 50 days' salary and three paid holidays. The union says that people subject to a Workers' Compensation award are meant to be treated differently pursuant to this collective agreement than people regularly at work. Article 48.1 of the collective agreement states: UAn employee shall be entitled to the following paid holidays each year:...u. The inclusion of the word "paid" in that article was an am1endment to the previous collective agreement. Thus, says the union, the grievor has a clear unfettered entitlement to the three paid holidays mentioned above. Then the grievor has an additional entitlement under Article 54.2 to his full salary for the entire 53-day period he was off. Therefore he should have received 56 days' pay for the 53-day absence. Counsel for the union concedes that this leads to an {\ ,t 2 " .\ anomalous result in that off work with compensable , a person a injury gets paid more than someone in full-time attendance, but argues that we must be compelled to that conclusion by the clear wording of Articles 48.1 and 54.2. Article 54.2 is set out below: ~Where an em~loyee is absent by reason of an injury or an industrial disease 'for which an award is made under The Workers' Compensation Act, his salary shall continue to be paid for a period not exceeding three ( 3 ) consecutive months or a total of sixty-five (65) working days where such absences are intermittent, following the date of the first absence because of the injury or' industrial disease, and any absence in respect of the injury or industrial disease shall not be charged against his, credits. ~ That article provides that an employee's full salary continues for up to 65 working days, in lieu of Workers' Compensation benefits which provide only 90% of net salary. In Mr. Woronchuk's case, the payroll department forgot to notify Workers' Compensation that Mr. woronchuk was being paid his full salary for up to 65 days, so his claim was processed and cheques were sent out to him : in error. The cheques were returned to Workers' compensation, but I I it is clear from their documentation that they were attempting to pay him for 53 days' absence. The Workers' ~ompensation Board does not distinguish between statutory holidays and regular work days and simply pays people for five days a week every week. The personnel department in this Ministry keeps track of the 65 days it is obliged to continue full salary by marking an employee absent on Workers' Compensation benefits (w.C.) for regular work days but absent on Holidays (H) for statutory holidays. Thus, personnel reported to workers' Compensation that Mr. Woronchuk was absent ¡ r 3 , from work for 50 eight-hour shifts. The practice of not including statutory holidays in computation of the 65 working days is a benefit to the employee because he gets his full salary for those extra days. The union says the grievor is entitled to be compensated for 53 days under Article 54.2, as calculated by the Workers' Compensation Board, and an additional "three days under Article 48.1. Article 54.2 specifically states "any absence in respect of the injury or industrial disease shall not be charged against his credi ts II . Those credits against: which his absence should not be charged include paid holiday credits. The union says that the employer has violated one or t:he other of the two articles by denying the grievor three extra days' pay. Mr. Ryder's argument is ingenious but we think he is reading too much into Article 54.2. He says we must look to the scope of the WCB award and the salary continuance must be identical. In our view, it is the making of an award by the Workers' Compensation Board which triggers the 65-day salary continuance entitlement. There is nothing in Article 54.2 which would dictate an equivalence between the Workers' Compensation ,award and the salary continuation. In fact, the amount of the award will always be less than the salary continuation, and whether or not Workers' Compensation recognizes statutory holidays as being different from other working days is irrelevant. The fact that the employer distinguishes between Workers' Compensation days and Holiday days ¡. . 'Í 4 ; -t in its records is also irrelevant. The obligation of the employer under Article 54.2 is to continue to pay salary. It is not a new salary regime that is set up in lock-step with the weB method of calculation. Without Article 48.1 in the collective agreement, employees would be required to take statutory holidays off by legislation but would not be paid for them. What Article 48.1 provides for is the continuation of salary on a day not worked. Article 54.2 also provides for a continuation of salary for days 'not worked. The salary that is to be continued is the same salary that the employee would have received had he, been working. For the above reasons the grievance is dismissed. Dated at Toronto this 1st day of March , 1993. ~~9L A. Barrett, Vice-Chairperson "I Dissent" (Dissent Attached) M. Lyons, Member l11r () ( 7~,,-- M. O'Toole, Member . ( " . - ( , , , :t' G.S.B. 1369/90 OPSEU (WOronchuk) and the Crown in Right of Ontario {Ministry of Correctional Services} DISSENl' I have read the decision of the majority in this matter and, with regret, I must dissent. I believe that Mr. Ryder's arguement is not only "ingenious" (pg. 3), but also correct. Under the terms of Article 54.2, the grievor is entitled to be paid for. 53 days, the pericxì of the weB award. As well, under the terms of Article 48.1 the grievor is entitled to be paid for Christmas, Boxing Day and New Year' 5 Day. Nowhere in the Collective Agreement are Articles 48 and 54 linked ; accordingly, the grievor is entitled to receive the payments afforded by each article considered separately. Ai though this leads·to a 'windfall' of three days pay for the grievor, so be it. Thiswouldn I t be the first time that an 'apparent inequity' resulted fran an interpretation of a collective agreement. More often than not, as the result of an interpretation of sane tenn of a 'collecti ve agreement, an employee will lose benefits or money to which s/he belileved s/he was entitled. In this case, the employee benefits. If the tenns of the collective agreement, as they relate to Articles 48 and 54, need to be clarified, the parties should do so during the next round of collective bargaining. th . Dated at Toronto this 18 day of February 1993. f