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HomeMy WebLinkAbout1999-1701.Fraser et al.03-06-27 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1701/99, 1702/99 UNION# OOD013, 00D014, OODOlS, 00D016, 00D017, 00D018, 00D019, 00D020, 00D021, 00D022 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Fraser et al ) Grievor - and - The Crown In RIght of Ontano (Mimstry of PublIc Safety and Secunty) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION George RIchards Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER MeredIth Brown Counsel Management Board Secretanat HEARING October 29 2002 2 DECISION I have before me ten gnevances filed In November 1999 by five correctIOnal officers Each of the five filed two IdentIcal gnevances, one claimIng that the Employer has refused to pay hIm hIS full financIal benefit as awarded by the WSIB and another claimIng that the Employer dIscnmInated agaInst hIm because It dId not report holIdays when reportIng lost Income to the WSIB There was no challenge to my jUnSdIctIOn to hear and determIne these gnevances In addItIOn to a number of exhIbIts, the partIes filed a JOInt Statement of Facts, the text of whIch provIdes as follow' 1 The five gnevors are correctIOnal officers who were absent for varyIng penods after they suffered work related Injunes, for whIch they were In receIpt ofWSIB benefits Each of these persons has filed two gnevances 2 Gnevances 00D013-17 allege refusal to pay the gnevors full WSIB benefits because they are not paid WSIB benefits on holIdays (Ex 1-5) 3 Gnevances 00D018-22 allege dISCnmInatIOn In that the Employer has not accurately reported to the WSIB the holIday entItlements of employees on WSIB The gnevances allege that the actIOn of the employer In not reportIng all the tIme lost due to Injury amounts to dISCnmInatIOn on the basIs of dIsabIlIty (Ex. 6-10) 4 When an employee IS absent due to a work related Injury for whIch an award IS made under the Workplace Safety & Insurance Act the Employer reports the hours of lost work to the WSIB 5 Pursuant to ArtIcle 41 2 of the collectIve agreement, the employee's salary shall contInue to be paid for a penod of 3 months or 65 days folloWIng the date of the first absence When the 65 day penod has expIred and the award under the WSIA IS less than the employee's full salary and the employee has accumulated credIts, the dIfference between the regular salary and the award shall be converted and deducted from the accumulated credIts as per artIcle 41 3 6 Employees are entItled to paid statutory holIdays as set out In artIcle 47 1 A 3 number of holIdays recogmzed In the collectIve agreement occurred dunng each of the gnevors' absences due to work related InJunes 7 The gnevors were all scheduled to work on these holIdays, and would have worked, but for theIr InJunes 8 When an employee scheduled to work a statutory holIday does not actually work, for any reason IncludIng but not lImIted to sIckness, bereavement leave, or work related Injury the practIce of the Employer at the tIme of the gnevances was to treat the day as a statutory holIday taken on the day Itself (ArtIcle COR 13 Ex. 11 Memo dated October 25 95 Ex. 12, Memo dated Nov 8 99) The employee then became entItled to the holIday pay under artIcle 47 1 F or purposes of WSIA, the day dId not count as one of the 65 days under artIcle 41.2 9 In keepIng wIth the above polIcy the Employer dId not treat the statutory holIday as covered by advances from the Employer When the Employer reported the amount of tIme lost due to Injury and covered by advances, the statutory holIday tIme was not Included In the calculatIOn of lost tIme 10 The gnevors receIved holIday pay for each of the holIdays on whIch they were absent. 11 FolloWIng a request from the Umon Steward, Rick FIschuk, the Employer confirmed to the WSIB that holIday tIme had not been reported and had not been covered by advances to the workers (Ex. 13-17 Letters dated March 22 and March 14 from R. LevInskI to WSIB) 12 The WSIB dIrectly paid the gnevors 85% of theIr net salary for the days In questIOn. (Ex. 18 copy of the payment stub sent to Mr EllIs IS representatIve of the payments that were made to each gnevor) 13 The Board made thIS payment pursuant to ItS own gUIdelInes that workers are entItled to receIve both full compensatIOn benefits and advances wIthout deductIOn, dunng those pen ods when they are takIng holIdays, vacatIOns, etc granted by a collectIve agreement. (Ex. 19 exerpt from WCB GUIdelIne 05-01- 04) ArtIcle 47 1 of the Central CollectIve Agreement provIdes that employees are entItled to 11 paid holIdays each year ArtIcle COR13 In the CorrectIOnal BargaInIng Umt CollectIve Agreement addresses the Issue of work on a holIday COR13 1 provIdes that an employee who works a holIday IS entItled to 2 tImes hIS or her hourly rate, as well as a credIt for the day For an employee authonzed to work, but does not work the holIday COR13 3 provIdes as follows 4 COR13 3 It IS understood that ArtIcles COR13 1 and COR 13.2 apply only to an employee who IS authonzed to work the holIday and who actually works on the holIday and that an employee who for any reason, does not actually work on the holIday shall not be permItted to the pay- ments descnbed hereIn. ArtIcle 41 of the Central CollectIve Agreement deals wIth workplace safety and Insurance The relevant sectIOns of that provIsIOn provIde as follows 41 2 Where an employee IS absent by reason of an InJury or an occupatIOnal dIsease for whIch an award IS made under the Workplace Safety and Insurance Act hIS or her salary shall contInue to be paid for a penod not exceedIng three (3) months or a total of sIxty-five (65) workIng days where such absences are IntermIttent, folloWIng the date of the first absence because of the InJury or occupatIOnal dIsease and any absence In respect of the InJury or occupatIOnal dIsease shall not be charged agaInst hIS or her credIts 41 3 Where an award IS made under the Workplace Safety and Insurance Act to an employee that IS less than the regular salary of the employee and the award applIes for longer than the penod set out In ArtIcle 41 2 and the employee has accumulated credIts, hIS or her regular salary may be paid and the dIfference between the regular salary paid after the penod set out In ArtIcle 41 2 and the compensatIOn awarded shall be converted to ItS eqUIvalent tIme and deducted from hIS or her accumulated credIts The maIn Issue for determInatIOn IS whether the gnevors were properly compensated under the CollectIve Agreement In CIrcumstances where they would have worked a holIday but for theIr absence due to a work related InJury When the Employer eventually advIsed the WSIB that holIday tIme had not been reported and had not been covered by advances, the WSIB dIrectly paid the gnevors 85% of theIr salary for the days In questIOn. The Umon takes the posItIOn that the Employer IS oblIged to pay the gnevors the remaInIng 15% of theIr salary for the days In questIOn, pursuant to ArtIcle 41 2 of the CollectIve Agreement. ThIS IS not the first occaSIOn on whIch the GSB has been reqUIred to decIde the entItlement of employees who are unable to work a scheduled shIft on a holIday due to a work related InJury In earlIer decIsIOns such as Charboneau 544/81 (Barton) and Mattison 5 0228/87 (Ratushny) decIsIOns decIded pnor to the collectIve agreement commenCIng on January 1 1989 the Board found that a gnevor who was unable to work on a holIday because of a compensable InJury was entItled to both regular pay and holIday pay or a lIeu day However amendments to the collectIve agreement, partIcularly to what IS now COR13 whIch were first Introduced In the collectIve agreement commencIng on January 1 1989 have led the Board to a dIfferent conclusIOn I was referred to a number of decIsIOns whIch were decIded after the amendments to the collectIve agreement were made, IncludIng Whittard 255/91 (Watters) Arnold 255/91 (DIssanayake) Cleveland 2350/92 (Stewart) and, Rundle 2259/92 (Kaufman) In the Whittard decIsIOn, the gnevor was unable to work her ShIft on Labour Day 1990 due to a work related InJury for whIch she receIved WCB benefits The gnevor claimed that she was entItled to 8 hours lIeu tIme for the holIday The panel dIsmIssed her gnevance after concludIng that "the nght to claim both salary and holIday pay or compensatIng tIme off, ended wIth the amendments to the collectIve agreement" The panel also concluded that entItlement dId not flow from what IS now ArtIcle 41.2 The Arnold decIsIOn dealt wIth an employee who was unable to work a scheduled holIday because of Illness UtIlIZIng the doctnne of "the fundamental reason for the absence" the panel departed from the approach In Whittardby dIrectIng the Employer to pay the employee sIck pay for the day In questIOn and to restore to the employee a one day credIt. However subsequent decIsIOns dId not follow the approach In Arnold In the Cleveland decIsIOn, the gnevor was absent on the Victona Day holIday and was In receIpt of workers' compensatIOn benefits for the relevant penod. The Umon argued that the Employer ought to have attnbuted 12 hours payment to workers' compensatIOn and also that the gnevor should be credIted wIth holIday entItlement for that day NotIng that the changes to the collectIve agreement and the Whittard decIsIOn 6 had not been brought to the attentIOn of the Arnold panel, the Cleveland panel followed the approach In Whittard It concluded that the applIcatIOn of a general doctnne, such as "the fundamental reason for the absence" IS "subJect to conclusIOns that result from more specIfic IndIcatIOns of the IntentIOn of the partIes" and that the language changes In the collectIve agreement provIded that specIfic IndIcatIOn. The panel In the Rundle decIsIOn also agreed wIth the Whittard approach. The Umon argued that a dIStIngUIShIng feature of the case at hand from the earlIer decIsIOns folloWIng the approach In Whittard IS that these gnevors were awarded WSIB benefits for the holIdays In questIOn. The Umon made representatIOns regardIng the meamng of the term "award" In ArtIcle 41 2 The Umon also submItted that It was appropnate to apply the doctnne of "the fundamental reason for the absence" In thIS case It IS my conclUSIOn that the Employer IS correct In ItS submIsSIOn that the Whittard decIsIOn, and those decIsIOns whIch approved of the Whittard approach, correctly Interpret the relevant provIsIOns of the CollectIve Agreement. The fact that the gnevors receIved WSIB benefits for the holIdays In questIOn pursuant to the WSIB's own gUIdelInes for such sItuatIOns does not, of course, affect the InterpretatIOn of the CollectIve Agreement. I also agree wIth the VIew expressed In the Cleveland decIsIOn to the effect that the doctnne of "the fundamental reason for the absence" IS InapplIcable In these cIrcumstances, gIven the specIfic language contaIned In the relevant provIsIOns of the CollectIve Agreement. ArtIcle 41 2 IS a provIsIOn desIgned to provIde salary contInUatIOn for employees who are absent due to a work related InJury Because employees absent on a holIday are not entItled to theIr salary gIven the agreement of the partIes In COR13 3 ArtIcle 41.2 does not assIst the gnevors In these CIrcumstances By not treatIng the holIday as one of the 65 days under ArtIcle 41 2 and 7 by paYIng the gnevors holIday pay for each of the holIdays on whIch they were absent, the Employer has satIsfied Its oblIgatIOns under the CollectIve Agreement. AccordIngly the gnevor are not entItled to the 15% "top up" for the days In questIOn. The second set of gnevances raises the Issue of whether the faIlure of the Employer to report to the WSIB all lost tIme due to InJury amounts to dISCnmInatIOn on the basIs of dIsabIlIty The Employer eventually dId report the holIday tIme and IndIcated to the WSIB that thIS tIme had not been covered by advances The gnevors dId receIve the benefits OWIng dIrectly from the WSIB There IS no IndIcatIOn that the Employer wIll not Include holIday tIme In ItS calculatIOn oflost tIme when reportIng to the WSIB In the future In any event, these CIrcumstances do not support the conclusIOn that the Employer dIscnmInated agaInst the gnevors on the basIs of a dIsabIlIty The Employer treated all employees who dId not work theIr scheduled ShIft on a holIday for whatever reason In the same way For the foregoIng reason, the ten gnevances before me filed In November 1999 are dIsmIssed. Dated at Toronto thIS 2ih day of June, 2003