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HomeMy WebLinkAbout1996-2539BRUN97_03_01 ~------ EMPLOYES DE LA COURONNE DE L'ONTARIO II.RIEVANCE COMMISSION DE ETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1 Z8 FACSIMILE/TELECOPIE (416) 326-13~ GSB # 2539/96 OPSEU # 97D230 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPS:SU (Brun) GRIEVOR - and - the Crown in Right of Ontario (Ministry of Health) Employer BEFORE R J Roberts Vice-Chair FOR THE G Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE D Chiro EMPLOYER Coordinator C A Negotiations Management Board Secretariat HEARING March 17, 1997 I AWARD In the present case, the gnevor sought to recover from the employer certam sums that had been deducted from her paycheques. It seems that over the course of the 1996 stnke, the employer paid the gnevor 100% of her wages. After the stnke was over, the employer umlaterally determmed that these wages had been paid m error and recovered them VIa deductIOns from her subsequentpaycheques For reasons whIch follow, It IS concluded that the gnevor must be treated as If she was entItled to paId sIck leave under the collectIve agreement durmg the stnke, but not 100% of her wages The employer was entItled to recover from her subsequent paycheques the dIfference between these amounts All momes recovered m excess of thIS dIfference must be refunded to the gnevor wIthm 30 calendar days of the date of issue of thIS award. The gnevor was a regIstered nurse at the Queen St. Mental Health Centre In December 1995 she went off work due to Illness and remamed on short term Sick leave untIl Apnl 11 1996 - 2 when she returned to work. The 5-week 1996 stnke took place while she was away It was common ground between the partIes that dunng the course of the stnke the collective agreement only applIed to those members of the bargammg umt who were kept on as essentIal workers. Only essentIal workers who became III dunng the stnke quahfied for SIck leave benefits under the collectIVe agreement. All other members of the bargammg umt, mcludmg those who would otherWIse have receIved sICk leave due to Illness, were not covered. Non-essential employees who were III dunng the strIke were mstructed to apply for unemployment Insurance SIck leave benefits. The gnevor, however, was gIVen to understand that she was an essential worker to whom the collective agreement would contmue to apply ThIS understandmg was denved from certam actIOns of the employer WIth respect to her status. DespIte the eXIstence of a Jomt umon- management mechanIsm for ensurmg that melIgible employees were excluded from the hst of potentIal essential workers, the gnevor was notIfied that she was on the hst of potential essential workers for the stnke Apparently, the gnevor's manager who was aware of the nature of the gnevor s Illness, dId not adVIse those who were responsible for makmg up the lIst that the gnevor would be unhkely to be able to work III the event of a stnke Toward the end of January 1996 when a stnke appeared to be mevItable the names of emplovees who were to act as essentIal workers dUrIng the stnke were drawn from the list. The gnevor s name was among those that were drawn She was notified that dUrIng the stnke she 3 would be an essential worker and, as a result, would contmue to be covered by the collective agreement. EIther Immediately before or shortly after the stnke commenced, the employer became aware that due to the nature of the gnevor's Illness, she never was elIgIble for status as an essentIal worker For some reason, however, the employer dId not notIfy the gnevor of thIS. To the contrary, throughout the entIre course of the stnke the gnevor was paId 100% of her wages as If she was, m fact, performmg essentIal dutIes at the mental health centre It perhaps goes WIthout saymg that the gnevor was happy WIth thIS arrangement and never conSIdered applymg for unemployment msurance SIckness benefits. After the stnke ended, however, the employer decIded that the gnevor had been paId m error Takmg the pOSItIOn that the gnevor was not entItled to any payment under the collectIve agreement dunng the stnke because she never was elIgible to be an essentIal worker, the employer proceeded to recover VIa deductIOn from her paycheques the entire amount of wages that had been paid dunng the stnke The gnevor filed the gnevance leadmg to the present proceedmg At the heanng, counsel for the UnIon submItted on behalf of the gnevor that the employer essentIally was estopped by ItS conduct from recovenng from the gnevor the entire amount of wages m questIOn It was submItted that the gnevor relIed upon the representatIOn that had been made to her that she was an essential worker who would stIll be covered by the collective .v 4 agreement durmg the stnke The employer could have termmated thIS relIance, It was submItted, by gIvmg the gnever notice of her melIgIbIlIty as soon as It was determmed, however, the employer dId not. By the time the employer sought to reclaim the wages that had been paid to the gnever It was submItted, It was too late to do so The gnevor was not at that pomt m a pOSItIOn to mItigate her losses. In the very specIfic facts of thIS case, I have determmed that the eqUitIes favour allowmg the gnever to keep some part of the payments that were made to her dunng the stnke In good faith, and through no fault of her own, the gnevor accepted the employer's determmatIOn that she was entItled to "essential worker" status and, as a result, would contmue to be covered by the collective agreement dunng the stnke. Even though the employer determmed near the start of the stnke that the gnevor was not entItled to thIS status, It never notified the gnevor Had she receIved thIS notIce, the gnevor could have made alternatIve financIal arrangements for the duratIOn of the stnke Instead, the employer remforced the gnevor's understandmg that she was entitled to "essential worker status by paymg her 100% of her wages Havmg been mduced to rely upon her entItlement to thIS status by these actIOns of the emplover, the gnevor had no reason to seek alternative compensatIOn. She acted m good faith upon her understandmg that the collectIve agreement stIll applIed to her At the same time, It must be saId that the gnevor was not entItled to more than she would have ,- 5 receIved under the collectIve agreement dunng the strike She was III throughout the penod of the stnke and, as such, the collectIve agreement would have provIded her wIth short term sIck leave benefits, and not 100% of her wages. Accordmgly, the employer was entItled to recover from her subsequent paycheques the dIfference between her wages and sIck leave benefits. It IS hereby awarded that the gnevor was entItled to payment of sIck leave benefits dunng the stnke but was not entItled to 100 % of her wages. All momes recovered by the employer III excess of the dIfference between wages and sIck leave benefits must be refunded to the gnevor ThIS refund must be made wIthm 30 calendar days ofthe date oflssue of thIS award. Dated at Toronto, Ontano, thIS first day of Apnl, 1997 s, Vice Chair