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HomeMy WebLinkAbout1994-2075SANVIDOTTI95_09_26 ONTARIO EMPI. OYES DE LA CCJURONNE CROWN EMPLOYEES DE L ON fAR/() 1111 GRIEVANCE CpMMISSION DE (' ,(\..,:, ! SETTLEMENT REGLEMENT V-S ' ,_ BOARD DES GRIEFS v-J 7""0 j\<<',\i UQ -' 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G lZ8 TELEPHONE/TELEPHONE (416) 326- 38R 180 RUE i!Y.NQ,A"S OU,E;.~J....B,UREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TEUicOPIE (416) 326- 39f _~,...~__.....-.."""r~~-'" c ,', _ \ " .- ~ · rr "'~. <"~ ' YI;.w.~ ~";,:;' ,t"''h ~~'::; "1 ~}"'~ tJ \ GSB # 2075/94 ~~."\MIi'\i ~".lJ,f i'~. ....'::.,,-, . f~ 1\;.." I OPSEU # 95C102 ,I SEP t {) 1995 i '1/ I} \" 'C t ,~./ ~ ~;.~;..... IN THE MATTER OF AN ARBITRATION p,PPEAL BOARDS - Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU ( sanvidotti) Grievor - and - The Crown in Right of ontario (Ministry of Heath) Fleetwood Ambulance Service Employer BEFORE 0 Gray Vice-Chairperson FOR THE J Gilbert GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE E Keenan EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING May 30, 1995 Decision ThIS grIevance arIses out of the employer's refusal to reImburse the grIevor for the cost of sunglasses. The gnevor IS an ambulance officer In June 1994 she attended on a Dr McFarlane and obtamed what she describes as a prescrIption for sunglasses. She testified that she went to the doctor because she was squmting, and was told her eyes were sensItive to lIght. The preSCrIptIOn that the doctor gave her saId Ro + 50 1.,0 + 50 Sunglasses - needs glasses for drlVing On July 22, 1994, the grIevor went to a store called The Sunglass Hut and pur- chased a paIr of sunglasses on dIsplay there for $11000 plus tax. She says she showed the preSCrIptIOn to the clerk at the time of the transactIOn, but acknowl edges that the glasses she purchased dId not have corrective lenses. Mter she purchased the sunglasses, she submitted the bill and the orIgmal preSCriptIOn to the employer and claImed reImbursement under ArtIcle 1901 of the partIes' col- lective agreement. Article 19 01 then prOVIded as follows: ARTICLE 19 WELFARE BENEFITS 1901 The Company shall pavone hundred percent (100%) of the cost of coverage of a healthcare plan whIch shall include the followmg features. group hfe msurance (as per Supenor i\mbulance group hfe msurance benefit.) drug plan ($25 00 deductible) long term msabihty dental plan (current ODA fee schedule, $25 00 deductible) ($125000 per person per year) weekly mdemmty (maxunum of $323.00 per week) optical plan $15000 every two (2) years per employee and per dependent member of the employee s unmedlate famuy <) .... - r Ms E Ross IS the manager of the employer ambulance servIce Her VIeW IS that the optIcal plan contemplated by thIs prOVISIOn covers only correctIve lenses Before the gnevor's, no claIm had ever been submItted for non-correctIve sunglasses, although several employees wore such sunglasses Ms. Ross's expen ence was that dIspensers of prescnptIOn glasses retam the prescnptIOn tendered by the customer Accordmgly, when she receIved an ongmal prescnptIOn from the gnevor she questIOned whether the lenses of the glasses m questIOn had been ground. The gnevor saId they had not. Ms Ross told her that she would be reIm- bursed only If she got glasses with correctIve lenses prepared m accordance WIth a prescnptIOn. She suggested that the grievor return the sunglasses to the Sun- glass Hut and purchase sunglasses prepared m accordance WIth the prescnptIOn from Lenscrafter or the lIke The gnevor says the Sunglass Hut refused to take the glasses back. ThIS gnevance was filed on September 20, 1994 Just before the hearmg m thIS matter, the gnevor obtamed the followmg note from Dr McFarlane May 24/95 To whom It may concern. Re LIsa SanvIdottI I have exammed LIsa SanvIdotti's eyes m June /94. Her VISIOn IS 20/20 m each eye. She IS slIghtly far-sIghted. In my opmlOn she will be more comfortable If she wears sun-glasses (ray ban) for dnvmg. The scope of the optIcal plan contemplated by ArtIcle 1901 became an IS- sue m the negotIatIOn of a renewal collectIve agreement. It was one of the unre- solved local Issues referred to mterest arbItratIOn for resolutIOn by arbItrator Paula Knopf. A hearmg on March 6, 1995 was followed by an award m whIch arbitrator Knopf sald thIs about the optIcal plan Issue Optical Plan The current OptIcal Plan allows for a $15000 [SIC] every two years per employee and per dependent member of the employee s ImmedIate famuy The Employer IS proposmg $150 00 every two years from the date of last payment by the Employer per employee and per dependent member of employee's ImmedIate family for prescnptIOn glasses or contact lenses, excluclmg sunglasses. The Employer IS prepared to pay for prescnptIOn glasses and contact lenses only The Employer IS concerned about recent mstances \\ here employees have attempted to receIve reImbursement for non prescnptIOn sunglasses. Because the Plan IS self msured, there IS 3 cuncern about this as a cost Item I, urthcr the Employer only wants to be obligated to rClmburse employees and thClr Immediate family for ~lasses at two-year mtervals The Umon wants to retam the fiscal year penod and sees no reason for the change The Unwn agrees the Plan was desLgned to COl'er prescnptwn glasses However, the Unwn wants to have the Plan, cover non correctwe sun protectwn glasses to asSLst Lis members m the event that they do not have correctwe prescnptwns, but desLre sun protectwn. I have not been persuaded by the Employer that there IS a need to change the baSIS for calculatIOn of the entitlement. However, It is clear that some amendment to the language would benefit the partIes m terms of theIr Jomt understandmg The partLes seem to agree that the plan was desLgned to cover only prescnptwn and correctwe glasses. If employees choose to have thIS cover the cost of corrective and preSCrIptIOn sunglasses, I see no reason to prevent that from occurrmg However, there IS good reason to prevent abuses of the system. Accordmgly, ArtIcle 1901 should be amended to read as follows $150 00 every two years per employee and per dependent member of the employee s family for prescribed correctIve glasses or contact lenses. I have added emphaSIS to the sentences on which the employer particularly re- hes m thIs proceedmg The union's representative here (who does not appear to have been present at the hearmg before arbItrator Knopf) objected to my gIvmg any weIght to what IS said m the mterest arbItrator's award. The award Itself IS the only eVIdence before me of what arbItrator Knopf was told by the umon con- cernmg ItS understandmg of what Article 19 01 was designed to cover The umon argues that the wordmg of Article 19 01 at the relevant time reqUlred an "optIcal" plan but did not expressly exclude lenses whIch are not ground or reqUlre that there be a prescnptIOn. In the alternatIve, it submIts that the sunglasses purchased by the grlevor were "prescription" glasses because the gnevor had a prescrIption and the last sentence of the doctor's note of May 24 1995 confirms (It argues) that they satisfied the prescnption he gave her m June 1994 The employer argues that the "optical" plan covers only prescnptIOn or corrective eye-wear, and does not cover non-corrective sunglasses It further ar- gues that the fact that no claIm for the cost of non-corrective sunglasses had preVIOusly been made estopped the umon from assertmg that the plan covered such claIms. It submItted that the doctor's prescnptIOn obtamed by the grievor clearly called for corrective lenses, and that the doctor's subsequent note does not say that non-corrective sunglasses would be m accordance WIth that prescnptlOn. .,- 4 In addItion to repeatmg Its arguments m chIef, the umon replIes that there can be no estoppel because there has been no representatIOn. Decision I agree WIth the umon that no estoppel of the umon anses from the mere fact that other employees who had sunglasses had not made a claIm for reIm- bursement before the gnevor dId The conduct of mdlvldual, rank-and file em- ployees m that regard could not amount to a representatIOn by the umon. I agree WIth the employer that the prescnptIOn obtamed by the gnevor calls for correc- tive lenses There IS no mconslstency between that and the later assertIOn that the gnevor's VISIOn was "20/20" the prescribed correctIOn was for slIght far- SIghtedness m both eyes, a condItIOn which would not affect an mdlvldual's abIl- Ity to see as well at a dIstance of 20 feet as someone WIth "perfect" VISIOn. The doctor's note does not say that non-corrective lenses satisfied the InstructIOns m hIS earlIer prescnptIOn and, m any event, It IS apparent that they did not. The Issue which remams, then, IS sImply one of constructIOn of the rather vague phrase "optical plan" m the context m wluch it was used m Article 1901 before the language of that article was altered by the Knopf award. In partIcular, the question is whether the employer can be saId to have faIled to prOVIde an "optIcal plan" as it agreed to do m ArtIcle 19 0 lIf the plan prOVIded covered cor- rective glasses but not non-correctIve sunglasses When used, as here, to describe one of the elements of a "healthcare plan", the word "optIcal"I seems to me to focus on those forms of eye-wear wluch 1m prove VIsual aCUIty to what mIght be called "normal" levels by mterposmg an optIcal element - a lens - between the eye and the field of VIew WhIle the optI- cal correctIOn of eyeSIght may also Improve comfort m the use of the eyes, It does not follow that everythmg whIch Improves comfort m the use of the eyes must 1 The Shorter Oxford EnglIsh DIctIonary (3rd ed. Oxford Urnversity Press 1968) offers these defirntIOns of optIcal Optical 1 Of, pertammg or relating to the sense of sight, visual, ocular (Now cluefly in speCIal conneXlons e.g an 0 illusion.) 2 Of or pertmning to SIght m relatIOn to the phYSIcal actIOn of lIght upon the eye hencp Pertammg or relatmg to light. esp as the medIUm of SIght belongIng to optics 1570 3 Treating of or skilled In optics 1570 4. Constructed to assist the SIght, acting b, means of SIght or lIght; deVIsed accordmg to the prInciples of optIcs 1748 5 fall wlthm the scope of an "optIcal" plan. It therefore seems to me suffiCIent complIance wIth an undertakmg to supply somethmg descnbed wIthout elabo- ratIOn, as an "optIcal plan whIch reImburses umdentIfied purchases that the plan reImburses the cost of eye-wear only If It IS correctIve ThIS VIew of the language of ArtIcle 19 OIlS conSIstent WIth what arbItra tor Knopf was led to belIeve that the umon understood the employer's oblIgatIOns to be under that language at the relevant time. WhIle I arrIved at that VIew m- dependent of the observatIOns m the Knopf award, I do not wIsh to leave the 1m preSSIOn that her observatIOns were of no consequence to the Issues before me I do not need to assess whether somethmg in the nature of an Issue estop- pel arose out of arbItrator Knopfs havmg found that the umon shared the em- ployer's understandmg that the eXlstmg "optical plan" dId not cover non correctIve sunglasses. Her award IS certainly some eVIdence that the umon ex- pressed such an understandmg and, therefore, that it had such an understand- mg In the absence of any eVIdence to suggest eIther that arbItrator Knopf mlS understood what was saId by the union representatives who appeared before her or that the umon dId not m fact have the understandmg expressed, the observa tIons m the Knopf award are at very least a suffiCIent basIs for a findmg that the partIes to the collectIve agreement dId have a shared understandmg that the eXlstmg "optIcal plan" did not cover non-correctIve sunglasses The words of the collectIve agreement are the partIes' words If the partIes have a shared under- standmg that one If ItS proVISIOns has a partIcular meamng, then that rather precludes any argument that the proviSIOn mean somethmg else For the foregomg reasons, thIS grIevance IS dIsmIssed. Dated thIS 26 t hday of September, 1995 " / / / ,/ 7 '\-""" t ~/ /' / ",. -<--')..~ / -" L/ // _____ I ..... __ '-__ ::-- - , Owen V Gray, VIce-ChaIr