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HomeMy WebLinkAbout1992-2259.Rundle.95-04-10 1i-. " ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO GRIEVANCE COMMISSION DE . 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, .RUE DUNDAS OUEST BURE~U 2100, TORONTO (ONTARIO). M5G 1Z8 FACSIMILE /TELECOPIE (416) 326-1396 I GSB # 2259/92 OPSEU # 92G392 \ IN THE MATTER OF AN ARBITRATION Under ~ .~ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rundle) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE S. Kaufman vice-Chairperson E. Seymour Member F. Collict Member FOR THE C. DiFranscesco GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE G. Basanta EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & (,,\t Correctional Services I \ \ \ HEARING January 18, 1995 1 DECISION This is the grievance of Tanya Rundle, a full-time Cor- rections Officer 2 employed at Guelph Cor~ectional Centre. She grieves that the employer improperly denied her 12 hours of compassionate leave on August 3, 1992 in violation of the I collective agreement. The background facts in this matter are not in dispute. The grievor works a "compressed work week;' i.e. one comprised .~ ., of 12-hour shifts. She was scheduled to work 12-hour shifts on Monday, August 3 and Tuesday, August 4, 1992. The Civic Holiday, a statutory holiday recognized in Art. 48 of the collective agreement, fell on one of those days, August 3, 1992. Thus, Ms. Rundle was scheduled to work on a statutory holiQay. On Friday, July 31, 1992, Ms. Rundle's brother was badly injured in an automobile accident. He was flown from Fergus, Ontario to st. Michael's Hospital in Toronto for surgery. He underwent surgery on August 1, 2 and 3, 1992. He remained in intensive care until Wednesday, August 5, 1992. On Friday, July 31 the grievor drove to Toronto to 'be with her brother, arrived at about 5 a.m. the morning of August 1, and remained in Toronto until Tuesday, August 4. On Sunday, August 2, 1992 she called the Shift Supervisor on duty at the Correc- tional Centre and informed him that she would not be in for her August 3 and 4 shifts, and the reasons. As is the normal practice, when she called, the Shift supervisor told her that her time would be recorded as a statutory holiday on August 3 . }", and as a vacation day on August 4, and that she could apply \ ;f' 'i " II for compassionate leave on her return. \ On August 5, 1992 she submitted her request for compas- sionate leave for August 3 and 4, 1992 to the Senior Assis- tant Superintendent in Charge of Corrections, Mr. Calverley. On or about August 10, 1992 she received the reply to her re- , 2 quest. It indicated that she was granted 4 hours of paid compassionate leave for August 3, 1992 and 12 hours- of paid compassionate leave for August 4, 1992 (Ex 2) . No inquiries were made of her prior to her receipt of the reply. The practical result was that the grievor was paid for 12 hours at her ordinary ("straight time") rate for August 3, 1992, split between 4 hours for compassionate leave and 8 hours as a paid statutory holiday for the balance of the day ~ -~ The grievor gave evidence to the above effect. The employer called no evidence. .~ The union's position is that the grievor should have been granted 12 hours of compassionate leave on August 3, 1992 and credited with a 12-hour statutory holiday in her time bank. It submits that the fact that the grievor's scheduled work day was a statutory holiday was irrelevant to the merits of her request for compassionate leave and an arbitrary exercise of the discretion, constituting a breach of Art. 55, which provides 55.1 A Deputy Minister or his designate may grant an employee leave-of-absence with pay for not more than three (3) days in a year upon special or compassionate grounds. 55.2 The granting of leave under this Article shall not be dependent upon or charged against accumulated credits. The union argued that the employer's action also breached Art. 48.1, the relevant portion of which provides 48.1 An employee shall be entitled to the . \;/:I ;p I following paid holidays each year: 1 \ i I. . . Civic Holiday . . . . . It submitted that Article 19 re Holiday Payment does not directly relate to the grievor's situation because she did 3 not work the Civic. Holiday and th~ holiday did not fall on an unscheduled day i.e. her day off. Article 19 provides: i 19.1 Where an employee works on a holiday in- I cluded under Article 48 (Holidays), he shall be paid at the rate of two (2~ times his basic hourly rate for all hours T! worked with a minimum creqit 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 who works on ~ the holiday shall receive either seven and one-quarte~ (7 - 1/4) or eight ( 8 ) hours pay as applicable at his basic hourly rate or compensating leave of _ seven and one-quarter (7 - 1/4) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday. 19.3 It is understood that sections 19.1 and 19.2 apply only to an employee who is authorized to work on the holiday and who actually works on the holiday, and that an employee who, for any reason, does not actually work on the holiday shall not be entitled to the payments de~cribed herein. . 19.4 When a holiday included under Article 48 (Holidays) coincides with an employee's scheduled day off and he does not work on that day, the employee shall be entitled to receive another day off. 19.5 Any compensating leave accumulated ~nder sections 19.2 and 19.4 may be taken off at a time mutually agreed upon. Failing agreement, such time off may be taken in conjunction with the employee's vacation /", leave or regular day(s) off, if requested IJ;! \,' one (1) month in advance. 'I , ,. II. 19.6 Any compensating leave accumulated under sections 19 2 and 19.4 in a calendar year which is not used before March 31 of the following year shall be paid at the rate it was earned. Effective March 1, 1978, the March 31 dated may be extended by agreement at the local or ministry level. 4 I 19.7 Notwithstanding anything in Article, 19, ~mployees who are in classfications as- ~igned to Schedule 6 and who are required ~o WOfk on a holiday included ,in Article ~8 (Holidays) shall receive equivalent time off. . Correctional Services officers are Schedule 4-7. The facts and the collective agreement disclose that had the grievor worked on August 3, 1992 as scheduled she would have been paid at potentially triple her regular rate under ~ .~ . I the comb~ned effect of Art. 19.1 and 19.2, and that she was paid at her regular rite for August 3, 1992. Essentially, the grievor's claim i~ that she is entitled to 12 hours of compassionate leave oh August 3, 1992 and credit for a day off in lieu of the Ci~ic Holiday that she was scheduled to b . fl. . h b ut, ow~ng to un ortunate c~rcumstances concern~ng er ro- ther, did not work. The union argued that 2 issues have to be decided in this dispute: 1) the number of hours of compassionate leave I that should have been granted for August 3, . 1994; and 2) if' 12 hours should have been granted, whether a lieu day or payment for the holiday flows I as a :r<esult. The union submitted that in the process of determining whether to exercise its discretion to grant compassionate leave, the employer mhst reject irrelevant considerations and must consider the ind~vidual merits of each request: Kuynt- \111, \ IV jes (513/84). It subkitted that the fact that the day in I . I" II question is a holiday is an irrelevant consideration which has nothing to do with the merits of the grievor's request. \ It submitted that no I"reasonable efforts to gain relevant facts as they applied to the particular case in question" 5 were made, contrary to minimal standards of procedural rea- sonableness cited in .Carvalho (0821/88) at p 5 The union submitted that the employer's failure to call evidence as to the reason for the denial of the balance of 8 hours on August 3, 1992 as compassionate leave permits the , board to substitute its decision and award 12 hours of com- passionate leave: Sandham (802/93). It submitted that the employer did not prove who made the decision, but rathersim- ply informed the board that t~e decision had been made by ~ '- Superintendent G.G. Simmons, who, it submitted, is not the Deputy Minister and no evidence was lead that he is the designee. .It submitted Dean (154/92) as to how quantum of compassionate leave has been determined "for completeness". It provided the panel with Simcoe et. al (1725/91) as autho- rity that an employee scheduled to ~ork a 12~hour shift on a statutory holiday receives 12 hours of pay at the statutory holiday rate, rather than 7.5 or 8 hours and ~ (3440/92), as a case which raised and rejected the! argument against pyramiding. It submitted that the granting of 8 hours of statutory holiday pay on August 3, 1992 was arbitrary. The union also referred to Harrison (0122/88) where, it submitted, the grievor received bereavement leave on a statu- tory holiday but was held entitled to be credited with ano- ther statutory holiday or compensating time off for the holi- day at another time, and where the pyramiding argument was also raised and rejected. The union noted in submissions that Harrison was heard before current Art. 19.3 became part of the collective agreement. \ ,/., i,;'l I,' ~ I' I The union submitted that it was relying upon Arnold \ , II (255/91), which, it advised, departed from a line of cases which indicated that an employee cannot receive payment for sick credits and holiday payor time in lieu thereof, and adopted and applied the "fundamental reason for absence" doctrine to sick benefits and holiday pay. It submitted that I . 6 like sick benefits and holiday pay, compassionate leave and holiday pay are separate and distinct benefits, that Arts. 19, 48 and 55 are subject to the same analysis, and that this board should apply the "fundamental reason for absence" doc- trine to the facts in this case. It submitted that the fun- damental reason for the grievor's absence was as she stated, and that the facts entitled her to compassionate leave sepa- rately and independently from her entitlement to the holiday under Art. 48. .- The union further submitted that if the board determines that the grievor was entitled to 12 hours of compassionate leave for August 3, 1992, she is entitled to a 12-hour paid holiday, because of Simcoe and ~, supra. The employer argued that under Art. 19, the grievor is entitled to compensation only when she worked a holiday or to receive another day off only when the holiday was a regularly scheduled day off, neither of which was applicable. It sub- mitted that she is not entitled to holiday pay as defined by Arts. 19.1-.3, and pointed out that the Union was not disput- ing this. It submitted that as August 3, 1992 did not coin- cide with the grievor's regularly scheduled day off, she was ~ not entitled to receive another day off under Art. 19.4. It submitted that even if the grievor was granted 12 hours of compassionate leave instead of 8 hours as a statutory holiday and 4 hqurs of compassionate leave for August 3, 1992, that would not alter its position, i.e. that as the grievor lost no benefit conferred by the collective agreement and suffered no penalty prohibited by the agreement, the employer had not \ 'I) \j breached the collective agreement and the grievor was not \ \ , entitled to anything further, e.g. the lieu day she claimed, under the collective agreement. The employer submitted that the granting of compassion- ate leave to the grievor had not been dependent upon or charged against accumulated credits, and that consequently it ----- 7 had not breached Art. 55.2 It submitted that in order for the employer to have contravened Art. 55.2, the grievor would have to have had 8 or 12 hours of lieu time "in the bank" against which the e~ployer had charged the compassionate leave. "- I " The employer acknowledged that it could not say why the grievor was not given 12 hours of compassionate leave on August 3, 1992, because the decision-maker was not present. It submitted that the amendments to Art. 19 ended the right ,~ ~ to claim both salary and holiday pay, and restricted holiday pay to employees who actually worked the holiday, citing Whittard (2618/90) in support of this submission. The union submitted. that W~ittard pre-dates the Arnold decision by 1 1/2 years and that the Arnold board "must have been aware of Whittard and chose not to follow it". It sub- , m,i tted that Art. 19 has no application to the situation be- fore this board. It confirmed that it relied upon Art. 55 and Art 48. It submitted that the employer's argument direc- tly contravenes Art. 55.2 and its spirit and intent. It submitted that the employer cannot use the fact that August . 3, 1992 was an enumerated holiday under Art. 48 to deny com- ~assionate leave under Art. 55.2, nor can the employer charge compassionate leave against the holiday. The parties agreed that none of their cases is exactly on point. The board has reviewed and considered their cases. Those decided before June 15, 1990 and the reasoning in them are of limited assistance to this board as they pre-date and therefore do not reflect the amendments to Arts. 19 and 48 \ )1 \ :1;1 'I which first appear in the January 1, 1989 to December 31, ! II \ 1991 Collective Agreement. In Kuyntjes, decided in i985, the grievor had failed to attend work due to a "moderately severe snowstorm". The em- ployer deducted a vacation day from the grievor's bank of 8 credits for that day and declined to give him a paid special leave of absence. The board stated at pp. 16-18: In cases involving the exercise of managerial discretion, Boards of Arbitration generally hesi- tate to substitute their view for that of the deci- sion-maker, which is a recognition of the fact that , Boards have less familiarity than does the Employer with the exigencies of the work place. However, Arbitrators must ensure that decisions are made within the confines of certain minimum standards of administrative justice. Those administrative law concepts relating to the proper exercise of discre- ~ tion include the following considerations: .~ 1) The decision must be made in good faith and without discrimination. 2) It must -be a genuine exercise of discretionary power, as opposed to rigid policy adherence. 3) Consideration must be given to the merits of the individual application under revie.w. 4) All relevant facts must be consider- ed and conversely irrelevant consi- derations must be rejected. In the application of those minimum guidelines ~ to the evidence presented, the Board is not satis- fied that the Employer has given adequate conside- ration to the procedural requirements of fairness -- as set out above. At the Hearing, the Employer presented insuf- ficient ev~dence to establish the nature of the enquiry duting which management exercised its deci- sion making process. There is no evidence to esta- blish when land where the enquiry took place, or who was in att~ndance at the enquiry, or the extent of the Employ~r's investigation. Iii' \ ii' . . . I In summary, there was insufficient evidence '1 . II presented to establish the extent of the Employer's \ . investigation in the denial of paid leave of ab- sence. As a result, management has failed to esta- blish that any meaningful consideration was given to the grievor's personal circumstances. 9 I In Sandham, de~ided in 1993, there was no evidence indi- cating that either the Deputy Minister or his designee was ever involved in the Art. 55.1 determination as to the grant- ing of special or compa~sionate. leave. The employer called 'the Regional Manager of Supply and Services, who was not the Deputy Minister's designee, and who described the process by , which she reached her decision. The board held that although th~ evidentiary burden is -upon the union in a"grievance under Art. 55(1), the union is not required to call evidence as to how the employer made the decision, but rather, "must estab- -~ lish, on the balance of probabilities, that the Employer has failed to exercise its discretion in a manner that is untain- ted by arbitrariness, bad faith or discrimination": citing Mailloux (S7/aS) M.G. picher, at pp. 17-18. The Sandham board held that because the employer has the exclusive know- ._-~ ledg~ of the proce~s by which an employee's request was de- nied, the employer is obliged to lead evidence in that regard and that in the absence of broad language in Art. 55.1 such as "the employer may grant" rather than "A Deputy Minister or his designee may grant", tne employer must provide evidence that all relevant information has been presented to the Depu- ty Minister or his designee, even where s/h~ relies on some- one else's recommendation, in order to' establish that the discretion under s. 55.1 has been properly exercised. 'The employer called no evidence as to why it did not grant the grievqr If hours of compassionate leave on August 3, 1992. In view of the reasoning in Kuyntjes and Sandham, supra, this board has4no choice but to find that the employer has not established that it properly exercised its discretion . \ 'i, under Art. 55(1). On the evidence before us, which was un- \+' 'I II \ disputed, we conclude that the grievor passed all of her time on August 3 and 4, 1992 in Toronto, Ontario in connection with a medical emergency concerning her brother. The employ- er offered no reason for not designating the other S hours on August 3 as compasssionate leave. This board has the juris- 10 diction to direct the employer to amend its records of the reason for an employee's absence when it has failed to estab- lish that its exercise of discretion under Art. 55 was pro- per, but in our opinion, it should only do so when there is a practical purpose to such an amendment. If the grievor is not entitled to a lieu day in her time bank, there is no I purpose as a practical matter in directing the employer to change the reason for absence, regardless of whether the employer has called evidence to prove it exercised its dis- cretion properly. Consequently, in order to determine what, ,~ - if any, remedy flows from its finding that the employer has not proven that it exercised its discretion properly, the .' board must decide whether the grievor is entitled to another day in her time bank. In Harrison, a 1988 decision, the board addressed the issue of "when a holiday falls at a time when an employee is on bereavement leave, is the employee entitled to both holi- day pay and bereavement leave payor is he restricted to one or the other". At that time Art. 19.1 was identical to the current Art. 19.1 set out above. Art. 19.2, however, did not contain the words "who works on the holiday" after the word "employee" until June 15, 1990 (pursuant to Art. 85.1 of the Collective Agreement for the period January 1, 1989 to Decem- ber 31, 1991). Prior to that Agreement, and for the purposes of Harrison, supra, Art. 19.2 provided In addition to the payment provided by section 19.1, an employee shall receive either seven and one-quarter (7 1/4) or eight ( 8 ) hours pay as applicable at his basic hourly rate or compensating leave of seven and one-quarter (7 1/4) or eight ( 8 ) \ \ \1:: hours as applicable, provided the employee opts for If! \ compensating leave prior to the holiday. II II After examining the jurisprudence and determining that as a bereavement leave situation was before it, which was neither a compensable injury nor a sickness situation, the board concluded that it did not have to rationalize the two lines of cases dealing with those situations. It concluded that . 11 neither the wording of Art 19.2 nor the prohibition against pyramiding precluded the grievor from entitlement to holiday pay under Art 19..2 in addition to paid bereavement leave' It granted the grievor bereavement leave on a statutory holiday and a lieu day for the"" lost" holiday. In the course of granting the grievor this remedy, the Harrison board rejected the reasoning in Pullano (730/83) where, as in Harrison, the grievor was absent from work on a statutory holiday due to a death, and sought bereavement .~ le~ve for the statutory holiday and a ~ieu day in compensa- tion for the "lost" holiday. Pullano decided that a lieu day was an Art. 19.2 benefit and that entitlement to a lieu day was conditional upon entitlement to Art. 19 1 premium holiday pay. Art. 19.1 required the employee to have worked the holiday to be entitled to the premium payments. The Pullano board reasoned that an employee who did not work the holiday was not entitled to a lieu day notwithstanding that the rea- son for not working the holiday was a bereavement for which time off had been granted. In the January 1, 1989 to December 31, 1991 collective agreement Arts. 19.2 and 19.3 were amended such that they now reflect the very interpretation the Pullano board gave their predecessor articles. Those amendments remain in the current collective agreement. By the insertion of the words "who works on the holiday" in Art. 19.2 and the introduction of current Ar.t. 19.3, the intention of the parties, that entitlement to premium holiday pay in 19.1 and 19.2 and to compensating leave as an alternative to the 19.2 premium is absolutely conditional upon the employee actually working the \,+i' 'I \ statutory holiday, has, in the opinion of this board, become II \ clear and unambiguous. Thus, the Harrison board rejected the reasoning in Pullano on the very interpretation the parties adopted in a subsequent draft of the collective agreement. We have come full circle The language of the current col- lective agreement now supports the view of the earlier 1983 . ---- 12 case of Pullano, rather than of the 1988 Harrison case. The Pullano board found that the employer had acted within its proper authority in recording the grievor's absence on the statutory holid~y as a paid statutory holiday i.e. "stat on a stat" . .1 In Arnold, supra, decided April 28, 1993, the grievor, also a correctional officer, was scheduled to work on a paid holiday but because of a non-work-related illness was unable to do so. The employer treated the absence as though the -, ~ grievor had taken the paid holiday. The union requested that the employer be directed to pay the grievor for the sick day at straight time or provide compensating lea~e for the holiday. As in Harrison, the Arnold board observed that the GSB has followed two divergent approaches with respect to an. em- ployee's entitlement to holiday benefits under Art. 19 while absent due to compensable work-related illness or injury as opposed to non-work-related illness or injury. Where the ab- sence from scheduled work on a paid holiday has been due to a compensable (WCB) injury, the GSB has held the employee is entitled to both the paid holiday benefit and Art. 54 Wor- kers' Compensation benefits [citing Charbonneau (544/81); McDermid (366/83) and Walberg (704/85)] and where the absence is due to non-compensable illness, the employee's entitlement is limited to holiday pay and s/he is not entitled to sick pay benefits under Art. 52 [citing Cooper (145/77); Martin (434/81); Bergsma (126/86); Robertson (641/85); Mandar (1815/ 87) and ~ (1999/86)]. The Arnold board observed at pp. 4- 5, . '/1 supra \ ,I, 'i I \ II While recognizing the absence of a rational \ basis for the distinction between "WeB" and "ill- ness" cases, the Board has consistently held that neither line of cases can be said to be manifestly wrong. Thus, in the interest of certainty, the Board has refused to depart from its prior deci- sions, and the two different lines of cases have been maintained. 13 At p. 6, the Arnold board stated that it was being asked to make its decision based upon the theory of "fundamental reason for absence" found in Re Atlas Steels Co. (1972), 24 L.A C 171 (Weatherill). It said at p 11 that because the case before it was an "illness" case, it had to determine I "whether the leg~l doctrine relied upon by the union is suf- ficiently meritorious and persuasive as would cause us to depart from an established line of previous Board decisions". At p. 13 it distinguished its position from the position of -- .~ the Mandar and Robertson boards because "in those cases the Board was nqt faced with a countervailing legal principle which suggested a different interpretation". It concluded "the doctrine of fundamental reason for the absence is logi- cal and meritorious and has direct application to the issue .t. before us" and noted that "employer counsel did not challenge the merits or the applicability of the doctrine'; but "simply urged the Board not to depart from its prior jurisprudence". The Arnold board reviewed the purposes of premium pay- ments for holiday work and the purposes of sick benefits, concluded that the purposes were separate and distinct and that it fo:!,.lowed logically that "each type of benefit must be paid to serve the purpose for which it was negotiated." It concluded that the only reason for the grievor's absence on the ~tatutory holiday was his illness, and because that was the only reason for his absence, the fact that the day of abs~nce was a paid holiday had nothing to do with the reason he did not work and was schedu~ed to work, and that the ill- ness was the very situation intended to be indemnified ,il 11.;1 i through Art. 52. It concluded, at p. 15 I , I' I' ...the doctrine of "the fundamental reason for the absence" requires...that where an employee is ab- sent, his or her benefit entitlement must be based on the .fundamental reason for the absence. The board noted at p. 16 that the strength of the doctrine is that "in each case the result is logical and predictable, and r, 14 more importantly, in conformity with the intended purpose of the benefit provisions of the collective agreement." It also said, at p. 17 Extreme circumstances exist here to determine this grievance on the merits of the legal submis- sions before us, without being constrained by past decisions rendered without a consideration of a valid legal principle put before us. and Since holiday pay and sick pay are both separately provided in the collective agreement no issue of .~ pyramiding arises in this case. ~ Although in Arnold the union requested as a remedy "an order requiring the employer to restore to the grievor his paid holiday entitlement by either paying him for the day at straight time or by providing compensating leave [emphasis added]" ( pp . 2 - 3 , supra) the board directed the employer "to amend its records to indicate that the grievor was absent sick on the day in question and to restore to the grievor a credit for a compensating leave for one day. The grievor of course will be entitled to sick pay for his absence on Decem- ber 26, 1990 [emphasis added]. " (p. 17, supra) . The board accepts Carvalho and ~, supra, as authori- ties for the propositions stated by the Union. In . Simcoe et. ale , supra, Arbitrator Gorsky was asked to decide the extent of the premium payment under Art. 19.1 for working on a holiday, and determined, at p. 11 (a) ...In the case of an employee working the compressed work week where the applicable hours are 12, the premium would be paid for , Ii those hours. I if " \ \ I (b) In the case of the additional pay at straight time or the lieu day, the hours with respect to which payor compensating leave are calcu- lated are seven and one-quarter or eight and there is no reference to "the regularly sche- duled hours, as applicable" [found in Art. 19.1] ., 15 He continued, in oQiter, It would have' been possible to do the same thing in arriving at the number of hours compensation pay- able to an employee Who did not work on the holiday under art. 48 or whose regular day off coincided with the holiday. Unfortunately, they did not and I we must deal with the issue presented to us on the actual language negotiated At pp. 12-13 he concluded, following the principle that all employees must be treated equally and must receive the same ~ ~ entitlement over a period of one year, that an employee work- ing a compressed work week should be paid holiday payor be given a lieu day under Art. 19.4 (when the holiday coincides with a ,scheduled day off) of a duration such that s/he~uf- fers no loss of income and receives no more lieu time off than would an employee working the regular work week. In ~j the 'board concluded that Simcoe et.al. was correctly decided. In Whittard, decided July 11, 1991, the grievor, a cor- rectional officer, was absent for 9 weeks commencing August 27, 1990 due to a work-related injury and received Workers' Compensation benefits' under art. 54.2. The grievor had been scheduled to work a 12-hour shift on Labour Day. He had a substantial bank of statutory holiday entitlement. The employer distributed the grievor' s entit'lement for Labour Day as 8 hours of statutory holiday and 4 hours of continued salary under Art. 54 2, which provided "...any absence in respect of the injury or industrial disease shall not be charged against his credits". The grievor grieved the denial ii, \ '\' of a credit for 8 hours lieu time for the Labour Day statu- 'I . tory! holiday. \ , ' i. At p. 7, the board noted that the parties amended Art. 19 in the last round of negotiations (referring to the Janua- ry 1, 1989 to December 31, 1991 agreement). The board stated at p. 6 that the result in Charbonneau, supra, arose from the / 16 I I "conclusion that Art. 19.2, ~s then worded, was intended to I apply to all employees and not simply to those who worked the holiday" . It. noted that when Charbonneau was decided, Art. 48 did not indicate that the enumerated holidays were paid holidays, and the Charbonneau board looked to Art. 19 for the , source of holiday pay. The Whittard board concluded that the language of Art. 54.2 did not support the Union's claim. It noted that the grievor had been granted the paid holiday pur- suant to Art. 48 and that no reduction had been made against ~ her earned holiday credits to September 1, 1990. It pointed out that because she continued to received her "continued salary" under Art. 54.2, her rights under that article were not compromised. It concluded that "the right to claim both salary and holiday pay, or compensating time off, ended with the amendments to the collective agreement". This board has compared the wording of Arts. 19, 48 and 55 in the January 1, 1986 tQ December 31, 1988 collective agreement with the wording in the January 1, 1989 to December 31, 1991 and January 1, 1992 to December 31, 1993 collective agreements. It is satisfied that the amendments to Arts. 19 and 48 result in clear language and reflect a clear intention that no entitlement to premium holiday payor days off in lieu arises where an employee, for any reason, does not work the holiday. This is most clearly stated in Art. 19.3, which provides: 19.3 It is understood that sections 19 1 and 19.2 apply only to an employee who is authorized to work on the holiday and who actually works on the holiday, and that \iI' Ii an employee who, for any reason, does not 'I ' actually work on the holiday shall not be \ , entitled to the payments described herein [emphasis added]. The words "for any reason" preclude 19.1 and 19.2 payments to employees who do not actually work the holiday, regardless of the reason. This board must decide whether lieu days or com- pensatory leave constitute "payments described herein" and 17 whether Art. 48 and 55 confer an entitlement to compensatory leave independently of Art. 19, as submitted. Employees are "entitled to receive another day off" 'un- d~r i9.4 and "compens'ating leave" in 19.2 only when their day off coincides with the holiday and when they work on the- holiday, respectively. Art. 19.4 refers to leave accumulat- ed under 19 2 and 19.4 as "compensat~ng leave". Art. 19.7 guarantees Schedule 6 employees who "are required to work on [an Art. 48] holiday" equivalent time off. The board con- ~ ~ cludes from the current language of Art. 19 read as a whole that the parties intended that an employee be entitled to payment under 19.2 or be within the 19.4 description as a necessary pre-condition to be entitled to compensating leave. Arts. 48 and 55, which provide: ,. 48.1 An employee shall be entitled to the following paid holidays each year: . . . Civic Holiday . . . . . . . 55.1 A Deputy Minister or his designate may grant an employee leave-of-absence with pay for not more than three (3) days in a year upon special or compassionate gro~nds. 55.2 The granting of leave under this Article shall not be dependent upon or charged against accumulated credits. are clear and unambiguous and express nothing to contradict \ \1 the intention of the parties expressed in Art. 19.3 or the \I), 1\ , I. actions of the employer in this case. Art. 48 grants "paid" II holidays on certain specified holidays. The arnountof pay for those holidays, or its substitute, compensating leave, and the basis for entitlement to it, is only found in Art. 19. This board therefore concludes on the plain language of the current agreement that an alleged breach with respect to (i 18 payment or compensating leave for an Art 48 holiday would have to be founded in Art. 19. It cannot arise independently from Arts. 48 and 55 on their plain meaning. With respect to an alleged breach of Art. 55, the board concludes that in this case neither the granting of leave nor the denial of a li~u day were dependent upon the grievor's accumulated credits or constituted a charge against her credits. Consequently, we find no breach of Art. 55.2. We have already indicated that the evidence and arbitral juris- _r ~ prudence supports a finding that the employer has failed to prove that it properly exercised its discretion under Art. 55.1. The basic entitlement under Art. 48 is simply a "paid holiday" . Whether an employee receives the statutory holiday as a day off or is granted paid leave, including compassion- ate leave for that day, s/he is still paid for the day at his/her regular rate ("straight time"), regardless of how the day is recorded i.e. paid leave, compassionate or special leave, or statutory holiday. This board is not persuaded that the reasoning in Simcoe et.al. leads to the necessary conclusion that i~ the grievor is given 12 hours of compassionate leave for August 3, 1992, she is also entitled to a 12-hour day (or a day of any length, for that matter) in her time bank in lieu of the holiday she was scheduled to but did not work. That case determined the number of hours of lieu time one is entitled to, depending upon the length of shift one works on a holi- day and other factors, but not the cirumstances entitling one \' :/1 \[;1 1 to lieu time and paid leave. 'I . II II Reconciling Arnold with Whittard poses a challenge. This board notes, however, that in Arnold sickness or injury deprived the employee of the ability to work the holiday, and the board attempted to bring its pre-1990 jurisprudence re- - ~j, 19 garding non-work-related illness or injury and entitlement to holiday pay into line with its pre-1990 jurisprudence regard- ing work-related illness or injury and entitlement to holiday pay. In focussing on the previous and divergent arbitral jurisprudence, the Arnold board did not address the amend- ments to Arts. 19 and 48, and did not have the Whittard case, , decided in 1991, and which addressed those amendments, before it. The fact that Arnold was decided after Whittard is not ., ~ persuasive. The date of a decision per se does not make it binding upon or a persuasive authority for a subsequent board. Nor can this panel assume that the Arnold board considered Whittard or its analysis based on the amendments to the collective agreement. While this board hesitates to conclude that the Arnold decision was manifestly wrong, whe- ther the Arnold board would have decided the matter diffe- rently if it had been required to reconcile its viewpoint with that in Whittard remains a matter of speculation. At any rate, .each board must decide the dispute before it on the basis of the language of the applicable collective agreement, as amended, on the date of the events giving rise to the grievance, and must weigh previous GSB decisions with that in mind. New wording in a subsequent collective agreement may result in. departure from or a return to earlier lines of jurisprudence on the same issue. This board notes that this case differs factually from both Arnold and whittard, where the grievors did not work the holiday pecauSe of illness or injury i.e. their own medical \w 1,'1' inability to do so. In this case, the grievor elected not to 1\ work the holiday. This is not to suggest that she was not so 1\ overcome with concern for her brother that she could have done otherwise and we are not without sympathy for her situa- tion. Nevertheless, wbether an employee elects not to work the holiday or is involuntarily prevented from working the Ii .. 20 holiday by illness or injury is a valid distinction between both Arnold and Whittard and this case This brings us face to face with the issue--does the fact that the grievor was deprived of the enjoyment of th~ holiday and the repose that it might otherwise have provided, by her or her brother's personal circumstances, which justi- fied compassionate leave, entitle her to a credit in her time bank and a deferred holiday? .~ If the grievor's Art. 55 paid leave was granted in order e g. for her to attend a wedding, rather than to be with her injured brother, the decision to seek paid leave and not to work the holiday as scheduled would have been seen to be her free and voluntary choice, and this board concludes that where an employee freely and voluntarily chooses not to work a holiday slhe is scheduled to work, slhe would not and should not be entitled to a compensating day off. As harsh as it may appear, the grievor's decision to be with her bro- ther in Toronto rather than work as scheduled was also taken freely and voluntarily. In this case, the grievor was scheduled to work the Civic Holiday. Had she done so, she would have been entitled to double time under Art. 19.1 and compensatory leave or a further 7 1/4 or 8 hours of pay at her regular rate under 19.2. She requested paid compassionate leave. She was paid at her regular rate for the day. If she had not been sche- duled xo work on the statutory holiday and had spent it as she was unfortunately obliged to in 1992, she would would have had a day off on the statutory holiday and would have \ I '. ,JI II) \ I . been paid for the holiday at her regu~ar rate, and would not \ II have been entitled to a lieu day If the union's argument were successful, and the grievor were entitled to a lieu day in her bank, the fact that she requested paid leave instead of working the statutory holiday places her in a better posi- tion than if she had not been scheduled to work on the holi- ~ '" 21 day. If she had .not been scheduled to work on the holiday, she would have one paid day off. On the union's argument, she would receive two paid days off On the language of the current ag~eement, that capnot be right. The wording of Art. 19 of the current colle~tive agreement makes it clear that the purpose of compensating leave is to ensure that employees who actually ~ork the holiday receive the same amount of time off as the employees who did not work on the holiday, but at a later date. ~ For all the foregoing reasons, this board concludes that co~pensating leave is not, on the language of the current collective agreement, availabl~ for employees who, though scheduled to work on a statutory holiday, do not work on it _. and seek paid leave. The board also concludes that the wording of Arts. 19, 48 and 55, read together, are clear and unambiguous. We conclude that compensa~ory leave is a form of "payment described herein" in Art. 19.3. We conclude that the grievor's circumstances unavoidably place her within the Art. 19.3 description of "an employee who for any reason does not work the holiday". The fact that the reason she did not work the holiday was because she had circumstances justifying her requesting (and possibly receiving) compassionate leave for both August 3 and 4 does not remove her fro~ that des- cription. Not having worked the holiday and having been paid at her regular hourly rate for August 3, 1992, the grievor was not entitled to any further benefits under the collective agreement, and specifically was not entitled to compensating leave under Art. 48 and/or 55. We agree with the board in whittard that "the right to claim both salary and holiday II) \ \ pay, or compensating time off, ended with the amendments to 'I '. h I the collective agreement". In the result, the grievance is allowed to the extent that the grievor is entitled to a declaration that the em- ployer has failed to establish that it exercised its discre- tion properly under Art. 55.1. This is, however, merely a (,: .. 22 technical victory which arises from the employer having oalled no evidence and the absence of proof that the Deputy Minister or his designee was involved in the decision-making process re the grant of compassionate leave. Despite the lack of proof re the employer's exercise of its discretion, because we have concluded that the grievor was not entitled to compensatory leave in lieu of the holiday (i.e. a lieu day), if this panel were to direct the employer to grant her 12 hours of compassionate leave for August 3, .~ ~ 1992, there would be no difference in terms of benefits owing to the grievor. She would remain entitled to 12 hours of pay ~ at her regular rate, which she has already received. We do not, in these circumstances, find the employer's desi9nation of 8 hours as statutory holiday ("stat on a stat") and 4 hours of compassionate leave on the grievor's payroll records an improper method of record-keeping. We therefore conclude that no interference by this board is warranted. The balance of the grievance is therefore dismissed. Dated at Toronto ~his 10th day of April, 1995. Susan D. Kauf a Vice-Chairman g~ Addendum attached. Fred Collict \\/) ,I' Employer Nominee 1 i \ \ 1\ Dissent to Follow Ed Seymour Unwn Nominee ... ~ ~ I ADDENDUM Re G.S B # 2259/92 (Rundle) j This Member is in agreement with the decision in this award to dismiss the subject . grievance However, this Member does not agree with the finding set out at page 9, as follows " this board has no choice bLlt to find that the employer has not ~ ~ established that it properly exercised its discretion under Art. 55 (1) " ., The reason for this position is that the Employer aareed to pay.compassionate leave for the two days at issu~ in this case, - August 3 and 4 August 4 is not a cause of complaint by Ms. Rundle. The sole "complaint" or "difference" between the parties is whether the employer properly paid compassionate leave for AU9LJst 3 in accordance with the provisions of the collective aareement. Accordingly, the exercise of discretion was made by the Employer to pay the compassionate leave on August 3. Inasmuch as there is .no difference between the parties on this issue, there is no reason why the Employer should be declared to have, " failed to establish that it exercised its discretion properly under Art. 55 (1)." (P 22 of award) F T Collict \ II" : I; l' ~ 1\ \