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HomeMy WebLinkAbout1992-3676.Bowen.94-09-02 :>" ~/ ( ( ~t: ONTARIO EMPLOYES DE LA,COURONNE I CROWN EMPLOYEES DE L'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 1Z8 FACS/MILE /TELE:COPIE (416) 326-1395 3676/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD /' BETWEEN OPSEU (Bowen) Grievor - and - , The Crown in Right of ontario (Ministry of Health - Kanata Ambulance) Employer BEFORE: A. Barrett Vice-Chairperson J carruthers Member M. Milich Member r FOR THE M McFadden UNION Counsel Koskie & Minksy Barristers & Solicitors I FOR THE M. contini EMPLOYER Counsel Mathews, Dinsdale & Clark I Barristers & Solicitors ~ HEARING December 7, 1993 - "- " ( ( DECISION -, The-hearing in this matter proceeded on an Agreed Statement \ of Facts which is reproduced below " The following agreed facts are without prejudice and without precedent to any other matter that may arise between the parties .J 1 The Grievor commenced employment with the Employer on April 5, 1982 2 A renewal Collective Agreement was entered into between the Union and the Employer for the period of April 1, 1989, to December 31, 1991 ('Collective Agreement I'), and this Collective Agreement was signed in July of 1991 ) 3 The Employer's vacation year is April 1 through to the following March 31 4 Normally, vacation credits are taken in the year that they are accrued 5 The Grievor was injured in the course of his employment on February 14, 1991 ('the injury') Since that date, ~the Grievor has been in continuous receipt of worker compensation benefits Due to the injury, the Grievor has been unable to return to his duties with the .~ Employer It is not anticipated that the Grievor will return to his duties with the Employer i.Q. the near future It is possible that the Grievor will not ever be able to return to his duties with the Employer, but this cannot be stated with certainty at this time 6 The Employer became aware of the long term nature of the Grievor's disability in December of 1991 7 After recetving Collective Agreement I, the Grievor requested payment for his vacation credits earned prior to February 1991, in a letter to the Employer dated July 28, 1992 The letter said . ) " C G>", "~"'..;.' (, 2 ....':!~, 'July 28, 1992 Mr. D Powell Manager Arnprior/Kanata Ambulance Service P 0 Box 13068 Kanata, Ontario K2K-1X3 Dear Mr Powell \ Please accept this letter as a formal request for payment of all earned vacation pay prior to my back injury of February 14, 1991 Sincerely, Gary Bowen' 8 The Employer responded to the request in the form of a letter dated August 14, 1992 -The letter said ~ 'August 14, 1992 ! Mr Gary Bowen 45 Castlefrank Rd Kana'tfa, Ontario K2L-2E6 RE Payment of Vacation Credits Dear Mr Bowen, I am in the process of reviewing your vacation credit records to pay you any outstanding amounts that you may be entitled to I have been very busy over the past couple of weeks with I I budgetary matters, but that is out of the way now I As you can imagine it will take me a few days to dig up I all the records and process the above item I I hope that this letter finds you well I I I Sincerely, I I D R Powell' I - - <- f ( \, 3 9 The Grievor received payment in full, as per the request made in his letter, in approximately November of 1992 The vacation pay received by the Grievor was for the entire vacation year ,1990-1991, that is, the Grievor had his vacation entitlement paid through to March 31 of 1991 As at April 1, 1990, the Grievor had accumulated 200 hours of vacation credits, constituted by a carry- over of 80 hours from the previous year combined with the 120-hour entitlement for the current year Through the vacation year 1990-1991, the Grievor used 140 hours of vacation credit, leaving a balance of 60 hours payable It was the 60 hours payable which was paid to the Grievor in November of 1992 10 After his receipt of the payments as described in paragraph 7 herein, the Grievor formally requested additional vacation payment beyond February 14, 1991, in a letter to the Employer dated November 30, 1992 The letter said 'November 30, 1992 Mr D Powell Operator Arnprior & Kanata Ambulance Service P 0 Box 13068 Kanata, Ontario K2K lX3 Dear Mr Powell Thank you for the cheque for vacation time prior to my injury It will certainly come in handy I was hot informed that you had continued to cover my family and me for health care benefits I was under the impression that they ceased in February 1992, as per the Workers' Compensation Act, and made arrangements for coverage elsewhere It would be advisable for you to cancel the insurance coverage as soonl as possible Further, since you decided to continue the benefit package without telling me your intentions, I do not expect to pay for it Therefore I respectfully request a refund of the $67 02 deducted from my vacation pay { I have one further request It has been pointed out to me that according to our contract, vacation time is considered a benefit that is accumulated while employed in your service If this is so I trust you will recalculate the outstanding vacation pay,- and send me a cheque to cover the balance f ( C 4 ' , I understand you received an enhancement to hire a secretary Congratulations This should make your administrative tasks simpler Please respond by December 07, 1992 I look forward to hearing from you I wish you and your family a joyous festive season Respectfully, I 11 The Employer formally denied the vacation pay request made in a letter dated January 7, 1993 The letter said 'January 07, 1993 Mr Gary Bowen 45 Castlefra'nk Kanata, Ontario K2L 2E6 RE Your Inquiry of Vacation Credits Dear Mr Bowen, After reviewing your request for additional vacation pay, over and above the earned entitlement, with my legal counsel, it is the express opinion of this management that you are not entitled to any further vacation pay at thj.s time Circumstances would be,different had you returned to work for this firm during the past 23 months, but you have not I trust that you received the cheque to cover the deductions, for the Extended Health Plan, and that all was in order Respectfully, o R Powell' r 12 The Grievor commenced full-time studies at Carleton University in the Fall of 1992 with a view to obtaining a three-year Bachelor of Arts The Grievor's tuition and re~ated expenses are being paid by the Workers' Compensation Board as part of a re-training program " / \ - ) \ / \ ( (, ,< 5 At issue is an interpretation of Article 13 01 of the parties' collective agreement, the relevant portions of which are reproduced below I "ARTICLE 13 - VACATIONS i 13 01 Vacations with pay will be granted annually as I I follows for full-time employees, One hundred and twenty (120) hours after one (1) year of continuous service; " By grievance dated January 14, 1993, Mr Bowen claimed vacation pay from February 14, 1991, to the present It is the l position of the employer that vacations with pay are a benefit earned by service and that the parties, when formulating their vacation clause, could not have intended to prov~de for vacation pay in any given year where there was absolutely no service performed whatsoever Counsel argues that such an interpretation would lead to the absurd result of an employee off work earning more than an employee working full time, in that the vacation pay would be in addition to the 90% of net pay provided by the Workers' Compensation Board for 52 weeks a year The union says that this issue has already been determined by r this Board in a 1987 decision (Sears, GSB #1129/86 (M G Picher)) That case involved a different collective qgreement with a different vacation clause, which is set out below: ~ l '.- c Er" " 6 '~~.'l' "ARTICLE 47 - VACATIONS AND VACATION CREDITS 47 1 Effective January 1, 1992, an employee shall earn vacation credits at the following rates (a) One and one-quarter (1-1/4) days per month during the first eight (8 ) years of continuous service, I ./ 47 2 An employee is entitled to vacation credits lunder Section 47 1 in respect of a month or part thereof in which he is at work or on leave with pay 47 3 1 An employee is not entitled to vacation credits, under section 47 1 in respect of a whole month in which he is absent from duty for any,reason other than vacation leave-of-absence or leave-of-absence with pay \ 47 3 2 When an employee is absent by reason of an injury or industrial disease for which an award is made under the Workers' Compensation Act,~ ) he shall accrue vacation credits only for the period during which he is in receipt of salary in accordance with Article 54 2 " \ 1 There the Board f~amed the issue as "whether or not when the j grievor was absent on workers I compensation, he was on a leave with payor a leave without pay" The Board found that the grievor was on a leave of absence with pay and therefore entitled to accumulate vacation credits. The Board adopted the reasoning in Re Joseph Brant Memorial Hospital of the Burlinqton-Nelson.Hospital and Canadian Union of Pu~lic Employees, Local 1065 (1973) 5 LAC ) (2d) 15 (Brown), wherein it was said r "There might in a proper case be ground for termination of employment of employees who must be absent from work because of compensable injuries, but to affect seniority and other benefits specifically prov.ided in the collective agreement would take clear and unequivocal , .- , Cv.:" C , ) 7 " language which is absent in the collective agreement between these parties " The same reasoning was also adopted in Re Cranbrooke and District Hospital and Registered Nurses' Association of British Columbia (1979) 24 LAC (2d) 274 (Thompson), wherein it was said "Both public policy and the parties in collective bargaining have long recognized the special circumstances of employees receiving [WCB] payments Their absence from work is a direct result of performance of their duties They are subject to periodic examination or treatment through the WCB, and they suffer a reduction in income under the schedule of payments They must be offered employment when they are able to resume work These considerations separate them from employees who are sick or are granted voluntary leave In this case, the grievor did not apply for a leave of absence, nor was she formally granted such a leave For all of, these reasons, arbitrators normally rule that the emploYment relationship continues in all significant respects during an absence arising from a work-related injury Therefore, clear language is necessary to deprive employees of any rights under the collective agreement while they are receiving WCB payments .. J In the Sears case, the Board held that the grievor was on a leave of absence with pay within the meaning of Article 47 3 of \ the collective agreement and as a result was entitled to the continued accrual of vacation credits under Article 47 1 of the agreement I The Sears case was followed in Aubin, GSB #515/88 (Knopf), where both counsel agreed that as a result of the Sears case, the grievor was entitled under Article 47 2 to accumulate vacation \ ,- c ,- ) ~~. :- 't' ~~ 8 (~.:~: credits when he was off work on a WCB claim There the Board also I I held that it was an appropriate case to relax against the 20-day rule with respect to retroactivity of the claim because the grievor had no way of knowing that the employer was improperly failing to credit him with vacation credits In addition, said the Board at page 7 "Because we are in a situation of a continuing breach and a situation where the vacation credits can and should be able to be calculated at any given po~nt in time, we are also not convinced \ that the Union was actually seeking retroactive relief Thus, for all these reasons, we agree with the Union's submission that a declaration is appropriate that takes into account all the vacation credits to which the grievor is entitled " . The union provided us with one case where the collective agreemept had virtually identical wording to our ,Article 13 01 (Re I Kingston Regional Ambulance Service and Ontario Public Service Employees Union, Local 462 (1992) 22 LAC (4th) 193 (Watters)) In that case the issue involved the accumulation of vacation credits during long-term absences on urc benefits and long-term disability payments There the Board said at page 201 " This dispute has arisen largely from the fact that continuous service is not defined for purposes of art 25 01 of the collective agreement In the absence of such a definition, the board adopts the approach taken in the cases relied on by the union This approach is summarized in Re Rahey's Supermarket by the following excerpt (at p 315) , In summary, it can be stated that arbitral jurisprudence generally supports the position that vacation entitlement which is predicated upon 'length of service' is not affected by an employee's involuntary absence unless there is \ ~ -~ } ( ( , 9 clear language in the collective agreement which explicitly or by implication purports otherwise , A similar analysis is found in Canadian Labour Arbitration, 3rd ed , Brown and Beatty, wherein the authors state at para 8 3220 I The language of the agreement itself will I, frequently settle the issue of which periods that an employee remains off work can be counted in computing her vacation entitlement Thus, while the arbitral jurisprudence may have been otherwise at one time, where the amount of vacation payor duration of vacation is calculated on the period of time a person has been 'continuously employed' or 'in service', in the absence of some clear expression of intention to the contrary, most arbitrators have held that employees who have engaged in a lawful strike, were off work \ because of illness, disability, leave of absence, maternity leave, or because they had been laid off during the course of the year, were entitled to count such time that they were not at work Where, by contrast, the agreement makes the accumulation of vacation credits conditional upon actual performance of work, active employment, or upon being on the payroll, working a specific number of the available wqrking hours, or where it limits the accumulation of vacation credits to specific instances, the resolution would likely be otherwise ' " The Board's finding in that case, that the grievor was entitled~o accumulate vacation credits while on long-term sick leave, was strengthened by the fact that elsewhere in the parties' collective agreement there were provisions stipulating that credit for both seniority and service for the purposes of vacation, salary increments, sick leave and other benefits is suspended during maternity and adoption leave The Board noted that this provision suggested that the parties were capable of isolating restrictive \ ~ I language when that was their real intent \ '-- ,... -- -- ------ --~ ( ( \" 10 The employer argues for an implied condition that benefits are granted in exchange for work actually performed and relies upon some obiter comments found in Re Canadian Union of Public Employees, Local 43, and Municipality of Metropolitan Toronto (1972) 24 L.A C 318 (Weiler) At page 328 of that decision, the Board said l II In concluding our opinion we must remark that we do appreciate the commonsense proposition that there has to be some relationship between the performance of services by the employee and the receipt of welfare benefits to, which the employer has contributed While lengthy disability of the employee is an unfortunate circumstance for him and his family, there has to be some benefit accruing to the employer as consideration for his continued payment for the benefits received by the employee It would be absurd to read a collective agreement as providing for life-time payments by the employer in respect of employees who do not and cannot work for him Of course, even though the person who is sick and absent continues to be an employee, he may be disentitled to receive certain benefits under the collective agreement because of qualifications in the provisions creating these ,benefits Ordinarily these conditions would be explicit and would have to be interpreted to see how they should be applied to the case of the sick employee Even in a case such as this, where there are \ no such qualifications expressed in the language of the agreement, a board of arbitration might be justified in finding an implied condition, on the grounds that it is unreasonable to conclude that the contract benefit in question was intended for this particular kind of employee in his situation II The collective agreement at issue in this case does not have clauses similar to Articles 47 2 and 47 3 in the Sears case - However, Article 47 1 is similar to our Article 13 01 under J - ",,' ( '., ( , ' \:' '" 11 consideration in this gr~evance, in that both speak of "continuous service" as a criterion for entitlement It appears that the Sears Board was examining Articles 47 2 and 47 3 to determine if they placed~ limitation on the general right to accrue vacation credits found in Article 47 liThe union says that Article 13 01 provides this general right to vacations with pay and there is no language els~where in the agreement that limits that right for employees absent on workers' compensation Presumably, when negotiating Article 13 01, the employer felt sufficiently protected against providing benefits to people such as the grievor on long-term weB by Article 15 04(c) which states that seniority and employment saall terminate when an employee has been absent due to layoff, illness or accident for more than twelve (12) months However, recent case law suggests that such a termination of employment may be contrary to the Human Rights Code and the employer's duty to accommodate handicaps In any event, the grievor'semployment has not been terminated We do not consider ourselves bound by the Grievance Settlement Board cases of Sears and Aubin because of the different collective agreement wording, but we are persuaded that the same result must be achieved The grievor is still a full-time employee and therefore in "continuous service" There is nothing in this collective agreement which expressly or impliedly limits the accumulation of vqcation credits during a weB absence from work We agree with the rationale exp'ressed in the Re Joseph Brant \ - ----- ~ I ,..-: (,. 1(, 12 i:'; Memorial Hospital the Re Cranbrooke and . ..1 Hos?ital case, Dlstrlct \ I case and the Re Kingston Reqional Ambulance Service case We also ( J agree with the "continuing breach" rationale in the Aubin case Accordingly, we declare that the grievor is entitled to accumulate - vacation credits while he remains an employee and while he remains unable to return to his duties and is in receipt of workers' compensation benefits There are amounts owing to the gfievor for the period from April 1, 1991, through April 1, 1993, and we remit the calculation of those amounts to the parties We will remain seized of jurisdiction in the event there is any difficulty in implementing this award Dated at Toronto this 2nd day of September, 1994. ~~ A Barrett, Vice-Chairperson ..J .. . ~carruthersl Member I Dissent "Dissent Attached" M Milich, Member ~ , ,/ S ( "'.y r. ( I Dissent In the matter of a grievance between. OPSEU (Bowen) and \ " Kanata Ambulance GSB File Number' 3676192 I have reviewed the draft award in the above matter, and regrettably I cannot concur in the decision. While I have no quarrel with the interpretation of the jurisprudence in the award, I am disturbed that this award goes much further than the cases upon which it is based. The significant difference between the cited cases and this grievance is that the cited cases were all decided after employees had retumed to work and were seeking a determination of what their vacation entitlement was upon their retumto work. In the instant case, the grievor is not currently at work and. in filet, has not been at work since February 14, 1991 Further, his return to work is not likely in the forseeable future and in fact he may not return to this employer At present, he is enrolled at Carleton University under the auspices of the Workers' Compensation Board as part of a re-training program. This award effectively pennits the grievor to collect vacation aedits for as long as he is in receipt of workers compensation and/or not working elsewhere. No Employer'in my experience would willing agree to such an outcome of the language of the collective agreement. Collective agreements are negotiated within the context of local conditions and understandings. In this context, Mr Bowen requested in his letter of July 28, 1992 that the employer pay his "earned vacation pay" It was not until some four months later that Mr Bowen asks for more than the earned amount. It would seem that, at least initially, both parties had the same understanding of the vacation credits owed Mr Bowen. If the local understanding differred from the original request, surely, the more general letter of November would have been sent in July Nor have my collegues given sufficient consideration to the employer's argument that the language of Article 13 is clear Vacation time and pay are inseparable. It is "vacation with pay" that is to be granted under the collective agreement not "vacation pay" The two concepts are very different and were ~- 10 " ( ( recognized as such in an early award. At page 2056 of United Electrical Workers" Local 514, re Amalgamated Electric Corp, the arbitrator states: Itlt does not, in our opinion, expressly or impliedly give any right of payor compensation in lieu of vacations which is something quite different from money recieved as pay-for the period during which a vacation as such is being taken." " We were not presented with jurisprudence which woul~ indicate that the two phrases mean the same thing. There is nothing in the collective agreement which allows compensation in lieu of taking the vacation. The fact that the employer had paid out the eamed vacation requested by the employee is not sufficient evidence to establish some form of estoppel which would allow this ,panel to, ignore the clear meaning of the agreement. Article 7 02 prevents this panel from expanding the agreement. As indicated in the award, it is the language of the collective argreemenf ( which should settle the issue. The jurisprudence that, where vacation /' entitlement is determined by continuous service, entitlement is not affected unless clear language, either implicitly or explicitly, indicates otherwise does create a dilemna for the interpretation of Article 3. The straightforward resolution of the apparent contradiction between the language of the coll8ctive agreement and the jurisprudence is that an employee continues to accrue continuous service for the purpose of determining hislher vacation entitlement once he/she retums to work. This approach also meshes with the purpose for which vacatiOn clauses are negotiatied which is to provide a period of rest from work obligations without loss. This approach also meets the essential purpose of the Workers Compensation Act which is to provide protection for injured employees while attempting to minimize not eliminate their losses. At the same time, s.7 ss.1 of the Act. limits the length of time an employer is required to maintain an employee's benefits to twelve mon~hs. Altematively, the collective agreement clearly sets out that the parties had not intended that the benefits of the agreement be extented to an employee beyond a twelve month period. Section 15.03 of Article 15 provides that seniority will accumulate during the first twelve months of an absence and clearly implies that such accumulation would cease at that time. Section 15.04 (c) terminates both seniority and emplo.yment after twelve months of absence. While it may be true that Section 15.04 (c) may be illegal in its automatic application of the termination of employment due to an illness or absence, it does not detract from the intent of the parties to limit the bef!8fits flowing from \ - --- ~--- ~ ~- -- I , i ( . (i the collective agreement. No one has argued that limitting the benefits is either improper or illegal. Articles 1503 and 1504 (c) state. J J\15 03 A full-time employee shall accumulate seniority under any of the following conditions: I (a) while he is at work for the Company, after he has completed his probationary period as set out in Section 15.02; (b) during the first twelve (12) months of any absence due to illness, accident, lay-off or written leave of absence 15.04 Seniority and employment shall terminate when an employee: (c) has been absent due to layoff, illness or accident for more than twelve (12) months;" The Union has argued that S'ection 15.03 does not apply in the instant case because it deals with the accumulation of seniority and not continuous service which they maintain is not defined in the agreement. The arguement goes that since the two are different the seniority provisions cannot apply to the continuous serviCe provisions in Article 13 - Vacations I suggest that this reasoning is incorrect. Sections 15.01 and 1502 of Article 15 state. ~ "15 01 Seniority for full-time employees is defined as length of continuous service with the Company For part-time employees, seniority shall be defined in accordance with the number of hours worked, and shall be calculated on the basis of 2080 hours worked equalling one year of seniority 15.02 A full-time employee will be considered probationary for the first seventy-five (75) days' worked and will have no seniority rights during that period. A part-time employee will be considered probationary for th~ nine hundred (900) hours worked and will have no seniority rights during that period. Upon completion of the probationary ~riod. an employee shall have his seniority dated back to the date he first commenced work for the Company" I submit that seniority and continuous service are inextricably intertwined in this agreement. Sedion 15.01 defines seniority as continuous service or, to put it another way, continuous service is seniority The only time that they are separated is during the probationary pefiiod. Thereafter, they are one and the same thing. To bifurcate the two terms make no sense in light of the clear \ ~ .._ J. ( ( Isngusgeof Section 15.01 Section 15.03, therefore, applies equally to continuous service and seniority Within this context, continuous service ceases to accumulate after twelve months and is lost as seniority While the grievor may still retain his employment status,he would lose all entitlement to vacation~ with pay since being without seniority is also to be without continuous service and not entitled to any vacation with pay For these reasons I would have dismissed the grievance. I Michael Milich p~JitJtY \ J \