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HomeMy WebLinkAbout1994-0643HILLIER95_06_08 - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ~ l1\ r 1111 GRIEVANCE COMMISSION DE , '0 c'- lib SETTLEMENT REGLEMENT c\ ,(0L~ BOARD DES GRIEFS Iv-\" ;J" \) (} /\'\ ~ -;l 'v 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 643/94 OPSEU # 94D699 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLE~ENT BOARD BETWEEN OPSEU (Hillier) Grievor - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE S Kaufman Vice-Chairperson G Majesky Member M Milich Member FOR THE L Harmer GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D Strang EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING December 7, 1994 i 1 DECISION The grievor, David Hillier, is a Sheriff's Officer with the Ministry of the Attorney-General On November 16, 1991 he unfortunately injured his back while at work, and has not worked since From early 1992 until a few months before he filed his grievance, he received Workers' Compensation bene- fits. He grieves that he has been denied Long Term Income Protection (LTIP) benefits under Art. 42 of the Collective - Agreement, and that the denial of those benefits constitutes a violation of the Agreement. The employer's position is that the grievor was not eligible for LTIP at the time that he i~ured his back and became disabled and that consequently the collective agree- ment has not been breached The history of the status of Sheriff's Officers as employees of the Ministry of the Attorney General provides the unusual background to this dispute. In place of evidence the parties provided the panel with a book of 15 documents and the following Agreed Statement of Facts, which is essentially a chronology of the significant historical events preceding this dispute 1987 - commenced employment with Sheriff's Office as Sheriff's Officer 20 Dec 89 - Ontario Public Service Labour Relations Tribunal decision finding Sheriff's Officers (including grievor) to be employees within the meaning of s 1(1) (f) of CECBA 17 Sep 90 - Ontario Public Service Labour Relations Tribunal find the grievor and other employees to be public servants 16 Nov 91 - date of injury to lower back 18 Nov 91 - medical diagnosis of herniated disc in back by general practitioner 2 25 Nov 91 - diagnosis of herniated disc confirmed by specialist 2 Jan 92 - grievor files Worker's Report with W.C B. 6 Jan 92 - Employer Report filed with W C B 10 Jan 92 - W C B. temporary disability claim allowed Nov 91 to - grievor involved in ongoing medical assessments present and conservative treatment, physiotherapy, rehabilitation programmes, etc. ; 9 Apr 92 - Memo of Understanding signed between OPSEU and Ministry of Attorney General recognizing public servant status of grievor and other employees, and agreeing to appoint all full time equivalent employees to the classified service on a date to be mutually agreed to M 31 Oct 92 - grievor moves to Alberta 18 Dec 92 - Joint Tribunal Implementation Meeting in which April 1, 1993 is set as conversion date for appointment of Sheriff's Officers/Bailiffs to classified service 1 Apr 93 - Sheriff's Officers converted to classified staff May 1993 - back surgery ruled out as possible "cure" Oct 1993 - grievor moves back to Ontario 22 Dec 93 - grievor applies for LTIP under Collective Agreement 20 Jan 94 - W C.B. terminates temporary benefits on the basis that grievor is not participating in vocational rehabilitation program as required 17 Feb 94 - LTIP benefits approved on the basis of total disability from performing any and every duty of grievor's normal occupation Mar 1994 - grievor files complaint regarding the amount of pre-injury salary used to calculated LTIP benefit 23 Mar 94 - employer acknowledges receipt of complaint from grievor in accordance with Article 27 9 2 of the collective agreement concerning the amount of LTIP benefit 3 25 Apr 94 - Confederation Life Insurance company advises the grievor that he is not eligible for LTIP cover- age, pursuant to eligibility requirements under the relevant insurance policy, therefore no fur- ther benefits will be paid 4 May 94 - the Joint Insurance Benefits Review Committee in considering grievors (sic) complaint under Article 27 9 2. determines that the grievor is not eligible for LTIP benefits under the terms of the insurance policy due to the fact that he was not actively at work from the date he became a civil servant on ApriL 1, 1993 16 May 94 - grievor files present grievance under Article 42 of the collective agreement seeking LTIP benefits 7 Nov 94 - employer and OPSEU sign Memorandum of Agreement dealing with certain outstanding issues regarding the status of court employees, including retroac- tive application of severance entitlement calcu- lations, seniority entitlement, vacation entitle- ments, and entitlement to statutory holiday and vacation pay, overtime and retroactive salary and benefits The insurance policy defines "employee" as "a civil ser- vant who is represented by the OPSEU" "Civil servant" is not defined in the policy. Elsewhere, under the heading "Eligibility" the Insurance policy provides: An employee will become eligible for insurance under this policy on the date he meets all the following conditions: (A) is employed by the Employer on a perma- nent full time basis. (B) is compensated by the Employer for servi- ces rendered in the normal course of the Employer's business. (C) has completed the Waiting Period (D) is actively at work or is on approved leave of absence and is not disabled 4 The other definitions in the policy's Definitions sec- tion which pertain to this dispute are "Actively at work", which is defined as "actually at work for the Employer for full time and full pay at the employee's customary place of emploYment" , and "waiting period", which is defined as "a period of continuous active employment. The Waiting Period for all employees shall be until the 1st day of the month - coincident with or immediately following 2 months of continu- ous service There shall be no waiting Period for employees covered on or prior to the effective date". The effective date is indicated on the first page of the policy as February 1, 1975 On April 25, 1994, the Supervisor of Toronto Group Life and Disability Claims of Confederation Life Insurance sent a letter to the grievor, the text of which reads: The Ministry of the Attorney General has advised that you became a civil servant effective April 1, 1994(sic) Prior to that date you were a public servant. As a public servant you were not eligible for insured benefit coverage On April 1, 1993, when you became a civil servant, you were disabled and not actively at work and you have continued to be absent from work since April 1, 1993, due to your disability. Accordingly you are not eligible for Long Term Income Protection coverage, pursuant to eligibility requirements under policy GH15902. As you are aware Confederation Life has already issued payments to you in the amount of $1,570.01 for the period of January 28, 1994 to March 31, 1994 Although these payments were made in error we will not be requesting reimbursement. However, since you are not eligible for Long Term Income Protection coverage under policy GH 15902 no further payments will be issued We hope this serves to explain our position to you and we suggest that you contact Anna De Marchi, your Benefits Consultant at the Ministry of the Attorney General with regard to your further ques- tions or concerns on this matter ............... 5 On May 4, 1994, the Senior Benefits Advisor of the Compensation & Labour Relations Policy Branch, Benefits & Pensions Section of Management Board Secretariat wrote the the grievor and advised him as follows Your appeal under Article 27.9 2 of the Collective Agreement in connection with your LTIP claim was once again reviewed by the Joint Insurance Benefits Review Committee at its meeting on April 22, 1994. Your Ministry has advised that you became a civil servant effective April 1, 1993. Prior to that date you were a public servant. As a public ser- vant you were not eligible for insured benefit coverage You have not been actively at work from the date you became a civil servant and as a result you are not eligible for insurance coverage under the terms of the policy. A The Committee regrets that we are not in a position to give a favourable consideration to your case. The Committee has agreed to remove your case from the table. On May 16, 1994, the grievor grieved the denial of his LTIP claim. Submissions and Argument of the union: The grievor began his employment in 1987 as a "fee-for- service" Sheriff's Officer. His duties included enforcement of evictions and process service. He performed those duties until November 16, 1991 when he was injured Between 1987 and 1991 the Union brought applications regarding the status of court employees, which included court reporters, bailiffs and Sheriff's Officers Fee-for-service Sheriff's Officers were found to be employees under s l(l)f of the Crown Employees' Collective Bargaining Act, 1990 (CECBA, 1990) on December 20, 1989. However, the status of such employees remained an issue after that finding On September 17, 1990 the Ontario Public Service Labour Relations Tribunal deter- mined that fee-for-service Sheriff's Officers were in the public service After that determination, whether such 6 employees were classified or unclassified, and part-time or full-time, became an issue. The grievor's back injury occur- red on November 16, 1991 The grievor claimed Workers' Compensation benefits and began to receive them in 1992. On April 9, 1992, OPSEU and the Ministry of the Attorney General signed a Memorandum of understanding (Tab 8) in which the Ministry recognized the public- servant status of "persons referred to as 'fee-for-service' Sheriff's Officers who meet the definition of ' employee'" under s. l(l)f of CECBA The Ministry agreed in the Memorandum to "appoint all 'full time equivalent' employees to the classified service on a date to be mutually agreed to". On October 31, 1992 to grievor moved to Alberta and continued his rehabilitation program On December 18, 1992, a Joint Tribunal Implementation Meeting set April 1, 1993 as the date upon which Sheriff's Officers would be appointed to the classified service The grievor remained in Alberta In May of 1993 he found out that back surgery would not help his difficulty. In October of 1993 the grievor moved back to Ontario, still receiving Workers' Compensation benefits He contacted the union and became a classified employee. He received a memo dated December 15, 1993 from the Ministry regarding Group Insurance Premiums Due for the period of April 1, 1993 to December 31, 1993 It states Employees on a Leave of Absence without Pay for a period in excess of 30 calendar days for Workers' Compensation injuries, are responsible for their portion of benefit premiums. The employer's portion will continue to be paid for you until you return to work 7 You may elect to maintain all or any of the bene- fits by remitting the following premiums. Insurance Mthly Premium Amount Owing Yes or No . . LTIP $7.67 x 9 $69 03 Please make cheque payable to the "Minister of Finance" The benefits not elected will -be reinstated imme- diately upon termination of the leave and your re- turn to duty, unless yo~ indicate your desire to discontinue the optional benefits If you should drop your L.T.I P. coverage, you will not have access to the L.T I P plan at the end of your leave should you become totally disabled before your expected return to work M Failure to remit the required premium within seven days of receipt of this advice could result in cancellation of all coverages. If you return to work during the month, do not make paYment, but enter the date of your return to work in the space provided. ELECTION I elect to continue my benefits as shown above Mr. Hillier signed the signature line beneath the elec- tion on December 30, 1993. As neither "yes" nor "no" is indicated in the column beside the $69.03 "amount owing" for the LTIP premiums, it is unclear from Ex. 4 whether he elected and remitted the amount owing regarding the LTIP On January 20, 1994 the Workers' Compensation Board (WCB) terminated the grievor's temporary benefits He appealed the decision and has appealed again in order to participate in a rehabilitation programme Over this period the insurer, Confederation Life, was looking at his weB claim records On February 17, 1994, Con- federation Life approved his application for LTIP until January 20, 1994, when they were discontinued, his Workers' 8 Compensation benefits were applied against any LTIP entitle- ment The grievor received cheques for LTIP benefits from January 20 to February 28, 1994, and for the month of March, 1994 When Sheriff's Officers became classified, their sala- ries were reduced substantially LTIP benefits are calcula- ted on gross salary as of the date of disability The grie- vor disputed the amount of LTIP he was paid, and appealed to the Joint Benefits Review Committee. By letter dated April 25, 1994, Confederation Life in- formed the grievor that because he was a public servant prior to April 1, 1993, he was not eligible for LTIP coverage The letter also stated that on April 1, 1993, when he became a A civil servant, he was "disabled and not actively at work" and had "continued to be absent from work since April 1, 1993, due to [his] disability. Accordingly [he is] not eligible for Long Term Income Protection coverage, pursuant to eligibility requirements under policy GH 15902 " On May 4, 1994 the Senior Benefits Advisor wrote to him regarding his appeal as to the quantum of benefits and again stated that he was ineligible for benefits under the terms of the policy. He grieved on May 16, 1994. On November 7, 1994, the employer, identified as Manage- ment Board Secretariat and the Ministry of the Attorney Gene- ral, and OPSEU, identified as "representing Court Employees impacted by PSLRT decision Sept 17, 1990" entered into a Memorandum of Agreement (Tab 16) which union counsel advised she and counsel for the employer understood would cover She- riff's Officers. Art. 9 of the Memorandum deals with retro- activity of benefits for some purposes Paragraph 9 of the Memorandum of Settlement dated November 7, 1994 states In full settlement of retroactive entitlement to statutory holiday and vacation pay, overtime and retroactive salary and benefits, each converted 9 employee to receive a lump sum settlement of $5,500 00 by separate cheque. The grievor's status as an employee has been in flux for a number of years His disability arose before the final determination of his status Art 42 of the collective agreement is comprehensive and the qualifications for protection under the LTIP are in the collective agreement and are clear Art 42 requires the em- ployer to pay 85% of the monthly premiums, and stipulates the benefit to be 66 2/3 of the employee's salary at the date of disability, and provides for graduated benefits during the rehabilitation process The collective agreement does not " explicity require the employee to have been actively at work before becoming eligible for LTIP coverage Art 39.1 provides The benefits described in Articles 40 to 57 apply to all full-time civil servants in the public ser- vice bargaining unit represented by the Ontario Public Service Employees Union. S 45.1 speaks of commencement of coverage after 2 months of continuous service. Therefore, the provisions of the collective agreement are clear and complete as to eligi- bility for LTIP Art. 42 is complete and comprehensive You are entitled to LTIP coverage after being a member of the civil service for 2 months. provisions outside the collec- tive agreement which are inconsistent with it can neither prevail over the collective agreement nor can they be relied on by the employer to deny benefits under the collective agreement. The employer and Confederation Life rely on (D) of the eligibility provisions in the policy, which requires the em- ployee to have been "actively at work or on approved leave of absence and not disabled" The definition "ac- tively at work" in the Definitions section on page 3 of the 10 policy means the employee must have been actively at work when s/he became a civil servant. There is an inconsistency between Art 42 and these terms of the policy The employer cannot rely on the terms of the policy to avoid its obliga- tion under the collective agreement. In British Columbia Rapid Transit co. Ltd. and Office & Technical Employees Union. Loc. 378 (1989), 6 L.A.C. (4th) 310 (McColl) the grievor was refused on the basis that he was not an employee when the disability arose and was retroac- tively reinstated. The policy denied benefits after 24 months for mental or emotional disorder. While the ~ case dealt with termination of benefits, the ~nstant case deals with commencment of benefits. There is no difference The employer iE liable to provide the coverage where the policy is inconsistent with or conflicts with the collective agree- ment The provision in the ~ collective agreement respec- ting coverage fell into Category 2 of the four-fold typology found in Brown and Beatty, Canadian Labour Arbitration. 2nd ed (1984), para 4 1400, i.e it provided for certain bene- fits The provisions for LTIP coverage in the instant col- lective agreement also fall into Category 2 Therefore the arbitral reasoning at p. 322 of the B.C case, There is nothing in my view, inherently inequi- table, in requiring a party to live up to the spe- cific terms of an agreement where that party has willingly entered into that agreement. . .the particular facts raised by this case seem not to have been previously adjudicated. The prin- ciple however seems to be clear where a collective agreement provides for a benefit plan to be provid- ed and it is contemplated (as here) that the plan will be provided by an insurer, and where the col- lective agreement specifically provides for certain benefits which are not provided by the insurer, the employer (in the absence of other circumstances) stands as the guarantor of the contractual benefits applies to this case 1 1 In Domglas Inc. and united Glass & Ceramic Workers. Local 201 (1985), 22 L A.C (3d) 355 (A.V M Beattie), the dispute was with regard to coverage under the drug prescrip- tion plan. The collective agreement fell in Category 2 of the Brown and Beatty typology as it specifically provided for certain benefits. The group policy was not incorporated into the terms of the collective agreement. The case determined that the employer was required to cover the cost of certain prescription drugs which were excluded under the policy. In R. Angus and I.A.M. Loc. 99 (1992), 30 L A.C. (4th) 169 (McFetridge) active employment was the issue The em- ployee was terminated and subsequently r~instated. He was unable to return to work after the suspension period ended. His claim for short-term disability (STD) benefits was refus- ed. The employer argued that he was not employed during the IS-month suspension. The arbitrator found that the provi- sions for the STD benefits in the collective agreement fell in Category 2, and that to support the employer's position, the collective agreement should have been more strictly word- ed. There was nothing in the collective agreement requiring the employee to have been at work on the day of or the day before the claim. Where the collective agreement is silent on the point relied on to deny the benefit and the policy conflicts with the silence in the collective agreement, the collective agreement prevails. In Somerville Belkin Industries and Energy & Chemical Workers' Union, Local 30, (1985), 21 LAC. (3d) 358 (Hinne- gan) the collective agreement provided for increased coverage for all full-time seniority employees, without restriction on eligibility The policy provided that only active full-time employees were entitled to increased coverage. The collec- tive agreement prevailed over the policy 12 As the provisions of the current collective agreement spell out specific benefits and entitlements, they fall in category 2 of the Brown and Beatty typology The employer cannot derogate from these provisions based on an ancillary document which is not incorporated into the collective agreement, inconsistent with the collective agreement and in conflict with the collective agreement. On the other hand, Art 40.3 of the collective agreement discloses a benefit where the parties intended to limit certain entitlements. It provides that where an employee is absent due to sickness or disability, the amount of basic life insurance which would otherwise be adjusted with changes . to the employee's salary from the later of the date of the approval of the increase or the effective date, will be adjusted only after the employee returns to work for one full day. Art 41.2 contains a similar provision with respect to supplementary life insurance. Art 52.2 limits entitlement to short term sickness benefits to those who have completed 20 consecutive working days There is no limitation on eligibility in the LTIP provisions. The requirement of 2 months of continuous service in Art 45 1 does not stipulate that an employee must be classi- fied. In Art. 25.1 employees become credited with continuous service after classification The grievor has had an employ- ment relationship since 1987 and has been in the public ser- vice since 1990 His seniority does not start only in 1990 The power of recommendation residing in the Joint Com- mittee by virtue of Appendix 5 does not mean the union had any control over the determination. The employer cannot raise an estoppel regarding the eligibility requirements in the insurance policy in the absence of evidence of reliance or acquiescence The union 13 hasn't acquiesced. It has not been in the front of and foremost in the parties' minds. Under the current agreement, an employee who is trans- ferred from unclassified to classified and who becomes disabled before the transfer takes effect would be covered Neither MacMillan Bloedel nor North Central Plywood deal with eligibility. The instant collective agreement sets out more than the "bare essentials" described in North Central I Plywood. Consequently there is no need to go outside the collective agreement to determine the matter The premiums and benefits can be dealt with without finding the provisions to be hybrid. This collective agree- ment is Category 2, subsuming Category 3. Subsequent to the hearing, counsel for the union pro- vided us with Ally 3085/92 (Barrett) and submitted in writing that this case deals with the very same issue. She submitted "as there is no provision in the collective agreement which disentitles a person from benefits because they were not "ac- tively employed" at the time of the disability or at the time they would otherwise be entitled to the benefits, the Board cannot now alter, expand or modify the collective agreement to incorporate such a provision". Submissions and Argument of the Employer: An exclusionary term is not uncommon LTIP benefits are set out in Art 42 Art 39 1 states that the Art. 42 to 57 benefits apply to "all full-time civil servants in the public service bargaining unit" Therefore the Art 42 LTIP benefits apply to the grievor at least as of April 1, 1993 14 Art 42.1 provides that the employer will pay 85% of the premiums. Art. 42 2 1 provides that the benefit is 66 2/3 of the gross salary on the date of disability. Those benefits can be reduced by other benefits. They are payable until recovery or death. Art 42 2 3 indicates that the benefits commence after 6 months from the date of total disability Art. 42.2 4 defines total disability Art 42.5 states that coverage terminates when the employee's status as a civil servant terminates. - The grievor was not on a leave of absence without pay pursuant to Art. 45.2 prior to April 1, 1993 Alternatively, if he had been on leave of absence without pay, in order to have been covered for LTIP, he must hav~ arranged to pay premiums 1 week in advance of each month for which he sought coverage. He did not pay such premiums over that period He was therefore not covered for LTIP prior to April 1, 1993. S 45.1 provides Employees will be insured for Basic LTIP bene- fits effective the first of the month immediately following two (2) months' continuous service. This describes an insurance program for classified employees after 2 months of continuous service. The grievor became classified April 1, 1993. His disability flows from a 1991 injury. If a classified employee is disabled within the first 2 months of his or her employment, s/he does not have LTIP coverage. The grievor was injured long before he became classified He wasn't anywhere near LTIP coverage when he became disabled If he returned to work one day, the collec- tive agreement provides for insurance, but the grievor was injured before his coverage came into effect. Art 39 1 provides that Arts 42-47 only apply to civil servants, i.e classified employees. Art. 45 1 states the requirement of 2 months of continuous service, but does not state the employee must be classified. The grievor was not 15 classified in November, 1991, his date of disability There was no question of his eligibility for LTIP on April 1, 1993 One of the documents relied upon by the union says the grievor will become classified April 1, 1993 On November 7, 1994 management and labour dealt with outstanding benefits In that document the parties recognized the retroactivity of certain issues The grievor had a Workers' Compensation injury and has received Workers' Compensation coverage, which is on appeal. If he is in fact injured and unable to work he will win his Workers' Compensation Appeals Tribunal appeal. His Workers' Compensation coverage is greater than LTIP coverage Be- cause of this coverage, there is no reason to mangle the col- lective agreement to render him eligible for LTIP benefits. The union's cases determined that the provisions of the collective agreement prevail in event of a conflict between them and the policy. This is not at issue The collective agreement does not contain any provision which contradicts the eligibility provisions in the policy. Art. 42 does not speak at all about eligibility. It sets out a requirement to pay premiums and determines the split of the premiums between the employer and employees. The collective agreement says coverage will commence after 1 month after an employee com- pletes 2 months of consecutive service. The policy is en- tirely consistent with the collective agreement. Art 42 is an agreement to pay for insurance, consistent with Art 45.1, and sets out some characteristics of that insurance coverage The parties have agreed to a number of specific terms and failure to provide them puts the employer at its peril These provisions do not fall in Category 2 of the Brown and Beatty typology. Category 2 requires that all benefits be spelled out in the collective agreement. This is a hybrid situation. It is a matter of interpretation as to ! 16 the parties' intentions with regard to matters not dealt with in the collective agreement The contents of the Policy and the collective agreement were well known to the union The collective agreement has been negotiated every 2 years The union has a lot more to do with the LTIP than other unions under other collective agreements. Art 46 creates a Joint Insurance Benefits Re- view Committee (JIBRC), whose mandate is set out in Appendix 5 of the collective agreement. The grievor received corres- pondence from that committee dated March 23, 1994 (Tab 12) and May 4, 1994 (Tab 14) The decision of the carrier is ultimately the decision of the employer, but the employer consider's the JIBRC's submissions. The.carrier has been under the union's close scrutiny. This grievance is brought more than 10 years after this policy has been in effect An employee does not get insurance coverage after the accident has occurred It is contrary to the notion of in- surance. The grievor's situation is just not there in Art 45 I. Art. 45.1 would exclude the grievor from coverage Otherwise, the eligibility requirements must be inferred and the Insurance Policy must be used as an aid to interpreta- tion, especially where it's a longstanding policy. Re Mac- Millan Bloedel Building Materials Ltd. and 1. W . A., Loc. 1-700 (1988) 2 L.A C (4th) 407 (J.B. Rose) indicates that a board of arbitration can infer that the parties knew the eligibili- ty requirements in the policy when they negotiated the col- lective agreement The union's knowledge of the eligibility requirements is a significant fact, and logic and good labour relations support application of that fact in determining the matter in dispute. MacMillan establishes that if a collec- tive agreement fails to provide for integration of benefits, the principle that the greater benefit applies where the col- lective agreement is silent does not always prevail It also establishes that the policy can be used as an aid to inter- preting the collective agreement provisions 17 In Re North Central Plywoods and Pulp. Paper & Woodwor- kers of Canada. Loc. 25, (1990), 13 LAC ( 4th) 264 (Somjen) the collective agreement was silent on conditions under which an employee would be disentitled to coverage, and the policy stipulated that an employee would not receive coverage while on vacation and prior to seeing a physician The collective agreement provisions reflected Categorie~ 2 and 3 in the Brown and Beatty typology It specified some of the terms of the benefits, and stated an agreement to purchase or provide certain coverage and the proportion of the premiums payable by the employer. The instant collective agreement is similar to the North Central agreement and is therefore a hybrid, rather than a Category 2 agreement as submitted by the union " Outside of Art. 45 1 the collective agreement contains no details re eligibility. This is a long-standing insu- rance policy, similar to the situation in MacMillan Bloedel and North Central Plywoods The policy is not inconsistent with the collective agreement and should be considered in compliance with it. The employer has relied on this policy. The union now argues it cannot. That must create an estoppel In Johns, 308/90 (Stewart) the union challenged a longstanding employer policy of deducting time debits against vacation credits The arbitrator found an estoppel arose from the longstanding nature of the policy and the absence of prior objection. The same sort of principles apply here In Gratton, 572/91 (Kaplan) at p 19 the arbitrator con- cluded that LTIP benefit calculations are based on the em- ployee's gross salary on the date of disability The grievor became disabled in November of 1991 He did not become clas- sified and have anything to do with this insurance coverage until April 1, 1993 It would be extraordinary for him to be entitled to coverage 2 years after the date of disability 18 Although the collective agreement does not state anything specific regarding eligibility, the collective agreement does deal with it It indicates an employee becomes eligible for LTIP coverage when he becomes a classified employee, and after completion of 2 months of continuous service, and when he satisfies the definition of total disability in Art 42. - The grievor's Workers' Compensation benefits entitle- - ment is entirely irrelevant to this matter. Counsel for the employer responded in writing to the union's post-hearing provision of the ~ case (supra) and written submissions He disputed the he~pfulness of ~ to the Union's position Reasons and Decision: The statements at pp 2-3 in Gratton, supra, indicate that the unreported decision of the Divisional Court dated September 9, 1986, and the ~ 1299/89 (Simmons) and Rhodes 866/90 (Dissanayake) decisions have confirmed that the GSB "has authority to decide grievances relating to the alleged denial of benefits provided for in the Collective Agreement". The initial point of departure for resolving this conun- drum is the parties' collective agreement and their Memoranda of Settlement, which must be read as a whole to construe the their intentions. As one of the issues is whether the purchased plan com- plies with the terms of the collective agreement, the Policy may be referred to as an aid to interpretation, if aid is necessary: Macmillan Bloedel, supra, North Central Ply- woods, supra 19 Art 45.1 provides Employees will be insured for Basic .LTIP bene- fits effective the first of the month immediately following two (2) months' continuous service (emphasis added) Art 39 1 provides: The benefits described in Articles 40 to 57 apply to all full-time civil servants in the public ser- vice bargaining unit represented by the Ontario Public Service Employees Union A definition of what the parties meant by "employees" in s. 45.1 would be helpful However, the collective agreement does not provide a direct definition, and one will have to be M inferred from the various provisions. Art. I.1, recognizes OPSEU as the exclusive collective bargaining agent for all public servants other than persons who are not employees within the meaning of S.l(l)f of CECBA (emphasis added) Curiously, s 1 ( 1 ) of CECBA, 1990 does not contain a subclause ( f ) . However, the sixth definition in s. 1 ( 1 ) of CECBA, 1990 R.S.O. 1990, c. C.50 is that of "employee" , and the sixth definition of s. 1(1) in CECBA. 1993, S 0 1993, c 38 is the definition of "Crown employee" This panel finds it not unreasonable to infer that the parties intended to incorporate by reference the definitions of "employee" and "Crown employee" in each successive CECBA into their collec- tive agreement. While the exclusions differ from 1990 to 1993, the definitions of "employee" and "Crown employee" in each of these Acts are substantially the same: a Crown employee as defined in the Public Service Act, but does not include . . 20 The parties thereby incorporated by reference the fol- lowing definition of "Crown employee" in s. 1 of the Public Service Act, R S 0 1990, c P.47 a person employed in the service of the Crown or any agency of the Crown, but does not include an employee of Ontario Hydro or the Ontario Northland Transportation Commission Therefore, the recognition clause refers to employees falling within the above definition of Crown employee The parties further provided in Art. 3 1, which is headed "Unclassified Employees" The only terms of this Agreement that apply to em- ployees who are not civil servants are those that are set out in this Article " and they stipulated, in Art 3.16 The following Articles shall also apply to unclassified staff other than seasonal employees: Articles A, 1, 4 2, 4 4., 6, 7 7, 9, 11, 12, 15, 16 , 17, 18.5, 21, 22 23, 25, 27, 29, 32, 33, 34, 35, 36 and 86. Arts 39 1, 42 and 45, which pertain to LTIP coverage are absent from Art 3.16. It is reasonable to and we infer that the parties intended to distinguish between classified and unclassified employees and their respective entitlements to benefits under the collective agreement, and that unclas- sified employees do not have the benefit of Arts. 39.1, 42 and 45, the articles which pertain directly to LTIP benefits, until they become classified Under the scheme and definitions in the Public Service Act, (supra) the public service is characterized as having two divisions, the classified and the unclassified service. In s 1 of that Act, members of the classified service are identified as civil servants. Members of the unclassified service are identified as public servants Although the grievor's employment status was not clearly defined prior to the pivotal dates of December 18, 1992 when the conversion i 21 date was established, and of April 1, 1993, when the grievor became a member of the classified service, the grievor was not a civil servant before April 1, 1993 It is clear from the scheme of Arts 39 1, 45 1, 3 1, 3 16 and the Public Service Act that the "employees" referred to in Art 45 1 are "full-time civil servants" under Art. 39 1, as defined in the Public Service Act. As the grievor was not a civil servant before April 1, 1993, if he had claimed LTIP for his injury in either 1991 or 1992, his claim would have been denied on the basis of his non-civil servant status. . It is a basic principle of group insurance that in order to be entitled to benefits a claimant must be a member of the group insured at the time of loss or injury. The only excep- tion to that principle would arise where the collective agreement or the policy clearly stated or the carrier agreed unilaterally that the benefit would apply retroactively for a certain defined period of time to former non-group-members, who would then be permitted to pay the premiums retroactive- ly. If the loss or injury occurred during or after that retroactive period, the claim would be honoured. If the loss or injury occurred before that retroactive period, the claim would not be honoured. In the letter to the grievor dated December 15, 1993 (Ex 4), the employer offered a limited window of retroactive coverage, from April 1 to December 31, 1994 This offer reflects the principles of the pre-requisite of membership in the insured group at the time of loss or injury, and the ab- sence of retroactive coverage in the absence of agreement and the payment of premiums for that period, and, indirectly, that retroactivity of claims is limited to the period repre- sented by the additional premiums 22 The parties appear to have recognized those principles when, on November 7, 1994, they agreed that in lieu of "retroactive entitlement to benefits" and other claims, each "converted"/newly classified employee would receive a lump sum paYment of $5,500 00 Counsel for each of the par- ties agreed that the November 7, 1994 Memorandum of Settle- ment (Tab 15) applied to Sheriff's Offic~rs The parties agreed that because Sheriff's Officers were not classified before April 1, 1993, they were disentitled to certain bene- , fits under the collective agreement, and incurred certain losses as a result of that disentitlement. The lump sum pay- ment was intended to compensate them for those losses In view of the wording of Arts. 39.1, 3.1 a~d 3.16, LTIP coverage under Art 42 was one of the benefits for which the parties intended to compensate the employees covered by the Memorandum. The grievor was one of those employees. The principle that a successful claimant must be a mem- ber of the group insured at the time of loss or injury is also reflected in Art 45.1 It is significant that Art 45.1 reads prospectively Employees will be insured . effective the first of the month immediately following two (2.) months' continuous service. (emphasis added) In the absence of clearer language in the collective agree- ment indicating LTIP coverage will cover injuries or loss which occurred prior to the date the employee became a full- time civil servant i e a member of the classified service, we conclude that the parties did not intend to provide that coverage in those circumstances The dispute and argument that the policy did not conform to the collective agreement and that the terms of the collec- tive agreement prevail over the terms of the policy appears to have arisen from the explanation provided in the April 25, 1994 and May 4, 1994 letters from the insurer (Tab 13) and the employer's Senior Benefits Advisor respectively (Tab 14). 23 In each of the letters, the writers stipulated the require- ment that the grievor have been actively at work from the date he became a civil servant in order to be eligible for insurance coverage, as well as the fact that he was a public servant prior to April 1, 1993 and therefore ineligible for coverage The reference to a requirement of being actively at work (which terms are not in the collective agreement) in order to be eligible for coverage inadvertently confused and obscured the operative reason for the denial of this claim--- that the grievor was not a member of the insured group (i e full-time civil servant) on the date of the injury, or the date he became totally disabled We therefore conclude that for the.purpose of this grievance, the purchased plan conforms with the terms of the collective agreement. In view of our findings, the balance of the submissions need not be addressed We are not without sympathy for the grievor's situation, but are restricted in our jurisdiction by the collective agreement and the statutes which support it For all the above reasons, the grievance is dismissed. 24 Dated at Toronto this 8th day of June 1995 , Susan D Kaufma Vice-Chairman /4/:CJ /~;;:L~ Michael MiMlich Employer Nominee Partial Dissent to Follow Gary Majesky Union Nominee