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HomeMy WebLinkAbout1992-2976.Moore.94-05-18 - ~ - -..-------'- " i ONTARIO EMPLOYES DE LA COURONNE I CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE .~ ~ SETTLEMENT REGLEMENT _ . BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100' TORONTO (ONTARIO) M5G lZ8 FACS/MILEITELECOPIE (416) 326-1396 2976/92 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECT~VE BARGAXNING ACT '~ Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Moore) Grievor - and - The Crown in Right of ontario (Ministry of Correctional services) Employer BEFORE: B. Kirkwood Vice-Chairperson P Klyttl Member M O'Toole Meml;>er FOR THE c. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE M. Mously EMPLOYER Grievamce Admin Officer Grievance Admin. & Negotiations Ministry of the Solicitor General & Correctional Services HEARING: September 29, 1993 I - .nc-: ,,:,:,:~'::.:.,:_...: --.:.-..._~"-,--,'''~ -.-:-- -" ~ ~- " " . - Page 2 DECISION The union claims th~t the employer violated article 49.1 of the collective agreement by denying the grievor three paid days \. off for bereavement 'leave. The grievor is a correctional Officer 2 at the Rideau Correctional Centre. The grievor works a compressed work week, such that he works seven, twelve hour shifts ~very two weeks and on every twelfth week he gets seven days off in a row. His days of work are Monday, Tuesday, Friday, Saturday, Sunday, Wednesday and Thursday in a twq week period. On the twelfth week he does not work wednesday and Thursday, and he is scheduled off until the following Monday. Over a twelve week cycle, the grievor averages 40 hours of work per week. -The grievor's grandmother died at 1:00 a.m. on a wednesday morning he was not scheduled to work. The grievor went to the wake on Wednesday and Thursday and attended the funeral on Friday. The grievor did not claim bereavement leave at the time as he understood that under the collective agreement he was required to Ube otherwise at workU to claim bereavement leave. The grievor received his normal pay. Subsequently, the employer f<;>rwarded a notice on benefits and advised the employees that Uto be otherwise at worku had been removed from the collective agreement. As this phrase had been r~moved at the time of the grievor's grandmother's qeath, the grievor claimed that he was entitled to the benefit. Prior to the amendment, article 49'.1 of the collective agreement stated: 49.1 An employee who would otherwise have been at work shall .be allowed up to three (3) days leave-of- ----- '. -- --- - .. -- "':'..D~ _ ~.. ''C. --- ~~-~ -,~'_.'~-=l~_.:;;~1r -",~Z2:Z:Z TI --..-- ; ti page 3 absence with pay in the event of the death of his spouse, mother, father, mother-~n-law, father-in- law, son, daughter, stepson, step-daughter, brother, sister, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandqhild, ward or guardian. 49.2 An employee who would otherwise have been at work shall pe allow~d one (1) day leave-of-absence with pay in the event of the death and to attend the funeral of his aunt, uncle, niece or nephew. ' 49.3 In addition to the ~oregoing, an employee who would otherwise have been at work may be allowed up to two (2) days leave-of-absence without pay to attend - the funeral o,f a relative listed in section 49.1 ,and 49.2 above if the' location of the funeral is greater than eight hundred kilometres (800 km.) from the employee'S residence. The announcement that the employer issued stated: IMPORTANT NEWS ABOUT YOUR BENEFITS!! 1 THIS CHART DESCRIBES RECENT CHANGES TO YOUR EMPLOYEE BENEFITS. PLEASE KEEP IT AS A REFERENCE GUIDE. BENEF I T IMPROVEMENTS for... ---- OLD Bereavement: if you "... would otherwise have been at work..." you were allowed: 0- up to three days of leave with pay following the death of ,some family members; and - up to two days of leave without pay to attend a \ family member's funeral if the funeral was more than 800 - kilometres from your home. NEW Bereavement leave: the provision which allowed leave only if you "would otherwise have been at work" has been removed. Even if you would not have been at work, you are entitled to the leaves. Employer'S counsel argued that the purpose of bereavement leave is to allow the employee to leave the harshness \ of the work environment and relied on the cases of Re Gray Forgings & Stampings Lt.d. and Int.ernat.ional union of Electrical, Radio and Machine Workers, Local 557 27 L.A.C. j \.... - -- __.__._------'---~__~____...~._. .....,=~~..~:r l-- , 'L...!.. ',~ -_~....,,-....~._....._- ~-, !..:..~ .O---'_~-'-___..__ __-,.._~ _._.;.___~~.~ _ ''i, page 4 (2d) 61 ( S h ime ) , Re province of Ontario and Ontario Provincial police Association Inc. 16 L.A.C. (2d) 307 (Shi,me) and OPSEU (Pullano) and The Crown in Right of Ontario (Ministry of Correctional Services) G.S.B. #730/83 (Jolliffe'). Employer's counsel argued that as the grievor was not at work" the purpose of the bereavement leave had been fulfilled. Furthermore, the grievor did not request leave at the time of the grandmother's death. Employer's counsel argued that it is contrary to the collective agreement to accumulate bereavement leave and use it at another time, as requested by the grievor. Bereavement leave is different from compensating time off or payments that are available to compensate an employee for working on a holiday, such as setout in articles 19.2 and 19.3, for overtime in articles 13.. 3 . 1 , 13,. 4 , 13.5 and 13.6 and for earning vacation credits as set out in article 47 The union agrees that there is no banking of bereavement leave but seeks the three days in compensation for the violation of the collective agreement. The employer is suggesting that as the grievor was not working the grievor was not entitled to bereavement leave. The grievor was not aware of the changes to the agreement at the time of his grandmother'S death. Under most circumstances knowledge of the law or the collective agreement is presumed. In t;his case there was no evidence led ~or argument by the employer that the onus was on the union to inform its members of changes in entitlement. On the contrary, there was evidence that the employer took on the responsibility of informing its employees of I the new benefits. The notice given by the employer was headed in , I bold " IMPORTANT NEWS ABOUT YOUR BENEF I.TS 1 1 1 THIS CHART I DESCRIBES RECENT CHANGES TO YOUR EMPLOYEE BENEFITS. I PLEASE KEEP IT AS A REFERENCE GUIDE. BENEFIT IMPROVEMENTS I for. . . This chart highlights improvements to your benefits by comparing the old and new provisions." I By not claiming bereavement leave at the time of the - --<<- ~~ ~.~:. '":'-0-:""-"'. .-.1:'?":---';"".-":""T7....... '..... . ~l','" "_ ~.;'''; 't'--r'T";~=:~","'rp:~2;:~_":"":;'~~;.!:... ~~. ~__,-j;L.~"I '" Page 5 death, the grievor was accepting the interpretation on bereavement leave, that he would not be entitled to bereavement leave as he was required to be lIotherwise at work" a!=) set out in the collective agreement as he understood it. By the employer raising its argument at this time, the employer is suggesting that the grievor be prejudiced by accepting the employer's position on the wording of the collective agreement when the grievor had no knowledge of the change in the wording nor could he be deemed to know of the change and the emPloyer had taken on the responsibility for advising the employees. In these particular circumstances we do not find that the grievor ought now to be prejudiced by having no notice of the change in the agreement. The purpose of bereavement leave is to allow the employee to have time to handle the events and the impact of d(3ath of a close relative, as defined by the parties. The inclusion of IIwould otherwise have been at work" in the previous article 49.1, tied the time for b~reavement leave to time worked and freed the employee from work for the defined period. It is only under the previous article 49. 1 would the interpretat'ion of whether 'the grievor was off work and the,nature of his working schedule be in i issue. The claim must then be considered in the context of the agreement as it existed ,at the date of the death of the grievor's grandmother. If we look to article 49.1 of the collective i agreement as amended, which is the applicable article, the employer's notice to its employees clarifies its understanding of the entitlement. The employer emphasized and placed in bold IIEven if you would not have been at work, you are now entitled to the leaves." Once the requirement to otherwise be at work was removed, the right to bereavement leave was expanded, and the employer recognized that an employee has th~ right to the time off irrespective of the employee's work environment or whether the employee is off for any purpose. The line of cases that follow the purpose of the bereavement leave to the exclus'ion of other factors is then no longer relevant to the interpretation of his . . _. ~ w. .... _.__ ,...-- _. .........,.-..." ~...- .....'... ~ _\..~_ -r---.......,..,:-:-::;..., .::-: ---'~- ~ .-- ---.-. - ~--_..'._._'-'_. / " Page 6 art.icle, in the context of its history, once tQe requirement to have been at work, was eliminated. One of t,he issues in Re Canadian Airlines Int'l and I.A.M., Lodge 172 20 L.A.C. (4th) 425, (Munroe) before Arbitrator Munroe was whether the employer was required to grant - compassionate leave when the employee'S vacation was interrupted by a death in the immediate family. ArbitratOr Munroe reviewed the cases that consider the purpose of bereavement leave and those that consider bereavement leave a separate right and concluded that leave is different from earned rights such as vacation. Arbitrator Munroe took the positon that compassionate leave does not impact the employee's other rights and obligations. He adds that "where a benefit is extended in positive terms in the collective agreement it is for the _ employer to de\fine its limitations." similarly, article 49.1 as amended confers the employee with a privilege to use bereavement leave days without impacting other rights that flow from the collective agreement. To interpret the article otherwise would mean that there would be no entitlement if the employee would not otherwise have been working which requirement had been removed from article 49.1 of collective agreement. Should the grievor therefore be denied his entitlement on the basis that the grievor did not request bereavement leave and bereavement days cannot be accumulated? Entitlement to bereavement leave waS expanded to ensure the employee has a right to leave which is triggered by a death of specified family members. Usually, the obligation is on the respective party to be aware of the changes to the agreement and therefore usually, the obligation is on the union to inform its members of the changes to the agreement, unless otherwise agreed. However, in the particular circumstances of the evidence led, we find that the employer took on the responsibility of advising the employees ofl the changes, but did not do so at the time until after the changes were effective. Therefore as the right existed, but the employer ( :,"'-...":.,- -- ~ - -, - - - --... -- ....~..-._,...--- --.-" .-'-~~"'._"'Y" ~ - . - \ ,- _-'-__"4' __. 'I. page 7 had not advised the employees until after the changes had been made, the employer cannot now take advantage of the position the grievor was placed in. As the grievor did not have to be at work, the grievor was entitled to bereavement leave, had hI? requested it. The employer cannot now rely on its actions which prevented the grievor from asserting a right which was otherwise there for the grievor to exercise. Th~re was no issue that the grievor delayed requesting the leave once the benefit was made known to him. We therefore find that the employer was in violation of the collective agreement and the grievor shall have three days off with pay as a result of this award. This time Qff shall be taken within two weeks of the issuance of this award upon request by the employee. It is not an issue of three, days compensating pay, as understandably the purpose of ber~avement leave is still relevant, and is to allow the individual the time to be with his family and relatives or to deal with the impact of the deat'h without outside pressures. Pay does not compensate for a death. The. time off now is to replace the time that the grievor was scheduled off work but was focussed on matters arising from the death of his grandmother. Therefore, this gr~evance is allowed. Dated at North York, this 18 tlday of M~y 1994. /fA;' , Belinda Kirkwood, Chairperson 7- {Ie 0~ ~ Peter Klym, Member " I Dissen~ " (Dissent attached) Michael O'Toole, Member .-.... - " .- .....-~ , ,_. ....--,.,..,....,--=._--~~-_. '-'~''''''.''r.'O'"'---:;-.~''~:::' t~~_._.~.-..-_..~:;. ~~ ..._-~.. . ........~ -.-~.-"~~~'-r-"--.,....,'1,:7-: --~...,...~?: ! I \ ,. DISSENT \ 2976/92 I must, with respect, dissent from the decision of the ) majority to allow this grievance The fundamental factual underpinning of their decision is the employer's notice to employees advising, among other things, of the amendment of the bereavement provipion of the collective agreemeht In my opinion, ! the majority attach a significance to this action by the employer which is justified neither by the evidence nor by the law. My reasons for this conclusion are set out below Three simple facts are central to this grievance: 1) ,The grievor was bereaved by the death ,of his , grandmother; 2) The grievor did not at the time of this bereavement 'apply for bereavement leave due to a mistake of fact, namely, that the qualifier, "be otherwise at work", was still in the bereavement provision of the collective ( agreement; 3) Sometime later the grievor learned, through a notice he received from the employer, that the above qualifier had been deleted from the bereavement provision prior to his bereavement. I 1 'j -] -......-;T~- -.'---.,.- - -_.. ~"'.?"";"',..,' ~~---~:-'''''''" -7" ~~.'''---::~~':~~;'''f)~,r~',-''-:;,~'':":<~ "......-.r. ...........1 .. . _.:~'\'1;-\-r;-\.\-t.-:".,,:'"(, ....T::~0....,....T':"-;':'J7-:;:~.'?,._'~ -- "7~- r-::rf"::;;''1.!r:'"~ -,,- -- [ ( /' --~-- --.-.--. --> c ;.:~ '- -2- It is clear that the grievor's initial decision not to apply for bereavement leave was based solely on his own mistake of fact and that this mistake was made quite independently of anything said or done by the employer. In the absence of any notice to employees by the employer this grievance would surely have to faL:1. on the ground that the grievor's knowledge of the collective agreement is to be presumed. Does the notice given by the employer to employees regarding the subject matter of the . ( . t 1 this result? The gr~evor's m~s ake a ter I majority conclude at page 4 that it does on the basis that there was no evidence nor argument by the employer that it was the responsibility of the union to notify its members of changes in benefits but that there was evidence in the form of the notice given by the employer to employees that the employer had taken on this responsibility. I I In my opinion the above analysis is flawed. While there may have been no evidence or argument that it was the union's responsibility to notify employees of contract cl;1anges, there was no express evidence that the employer had given such notice out of a sense of responsibility It might be argued that the giving of notice itself is implied evidence of the latter. But it is also equally consistent with an intent to do no more than communicate information for the purpose of maintaining good r~lations with its employees. The union has the onus of proof in these proceedings. ---- ":"''':r.'';:'''''~ ,.- 1"' 't'"'-,"""~~'!'" -.- - ._-~.._-- -. ( --~~ -_.- .'....-_.'-_._._~. ----......---. C, :I ~ .~ -3- I Given the above ambiguity in the evidence, the union has failed to discharge the onus of proving that the employer assumed legal responsibility for notifying employees of contract changes Even presuming that the employer assumed the legal responsibility to notify the grievor of contract changes, surely the responsibility was only to give reasonable notice, that is, notice within a reasonable period of time following the negotiation of the changes The only evidence relevant to this question was that the grievor's bereavement preceded the giving of notice by the employer. There was a complete dearth of evidence on the question of whether the employer could reasonably.have been J expected to give notice to the grievor any earlier than it did and ~pecifically, as early as the date of his bereavement. In the absence of such evidence, the union has not discharged the onus of proof. In the final analysis the inescapable fact is that the grievor if? not entitled tq bereavement leave because he did not apply for it on the occasion of his bereavement And to grant him bereavement leave now" when the occasion of his bereavement is long past, would ,be completely inconsistent with the .purposes of bereavement leave. Therefore, I would have dismissed the grievance. 7fJ; Ol~~. ( M O'Toole, Member - ! ( ~ ' ;r"-;.......-'l!-......---;-rr...'''''- -~.,,'