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HomeMy WebLinkAbout2000-0409.Dupuis.01-02-14 Decision ONTARIO EA1PLOYES DE L4 cOURONNE CROW"! EMPLOYEES DE L "ONTARIO GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB #0409/00 OPSEU#00B215 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Emplovees Umon (Dupms) Gnevor - and - The Crown m RIght of Ontano (Mimstn of North em Development & Mines) Employer BEFORE Nimal V DIssanavake Vice-Chair FOR THE AlIson Kabuvama-Hun (Counsel) GRIEVOR Gnevance Officer Ontano PublIc ServIce Emplovees Umon FOR THE Carol Ann Witt EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING February 2,2001 DECISION ThIS IS a gnevance dated May 31 2000 filed by Ms Joanne DUpUIS, whereIn she claims that the employer has demed her entItlement to sIck leave wIth pay In contraventIOn of the collectIve agreement and/or the Ontano Human Rights Code The gnevance was argued solely on the basIs of certaIn documents filed on consent and a statement of agreed facts The agreed facts are as follows 1 The gnevor Joanne DUpUIS, began employment wIth the Ontano PublIc ServIce In February 1982 2 At tImes dunng her employment due to her number of sIck days, the gnevor drew on her accumulated vacatIOn credIts pursuant to artIcle 44 of the CollectIve Agreement In order to receIve her full regular bIweekly pay 3 At a regularly scheduled meetIng attended by the gnevor and her colleagues at whIch no manager was present, one or more of the gnevor's colleagues expressed frustratIOn to her about her hIgher than usual rate of absence from the workplace and lower productIVIty The gnevor belIeves thIS cntIcIsm arose due to a lack of knowledge on the part of her colleagues about her state of health. 4 A short tIme after thIS meetIng, on October 4 1999 the gnevor began a medIcal leave from employment. 5 The gnevor returned to work on an accommodated work plan on February 28 2000 by whIch tIme she had used all her accumulated sIck leave credIts 6 In accordance wIth the accommodated work plan agreement, the gnevor works 3 of the 5 workIng days of each week, has a work-space on a dIfferent floor from her colleagues and has lImIted contact wIth them. 7 For the penod from Apnl20 2000 to September 30 2000 the gnevor receIved Long Term Income protectIOn for the 2 days of the 5-day workweek that she does not work In accordance wIth the accommodatIOn agreement. 3 8 The gnevor appealed the Insurer's decIsIOn not to contInue payment for the 2 unworked days of each 5-day workweek after September 30 2000 The Insurer has demed the gnevor's appeal The collectIve agreement Includes the folloWIng provIsIOns relatIng to full-tIme employees' Short-Term SIckness Plan 44 1 An employee who IS unable to attend to hIS or her dutIes due to sIckness or InJury IS entItled to leave of absence wIth pay as follows (1) wIth regular salary for the first SIX (6) workIng days of absence, (2) wIth seventy-five percent (75%) of regular salary for an addItIOnal one hundred and twenty-four (124) workIng days of absence In each calendar year 442 An employee IS not entItled to leave of absence wIth pay under ArtIcle 44 1 untIl he or she has completed twenty (20) consecutIve workIng days of employment. 44 12 For the purposes of thIS artIcle, twenty (20) consecutIve workIng days of employment shall not Include vacatIOn leave of absence or any leaves wIthout pay but days worked before and after such leave shall be consIdered consecutIve NotwIthstandIng the above, where an employee IS unable to attend to hIS or her dutIes due to sIckness or InJury the days worked before and after such absence shall not be consIdered consecutIve The relevant provIsIOns of the agreement dealIng wIth the Short-Term SIckness Plan for Regular Part- Time Employees are 4 71 1 An employee who IS unable to attend to hIS or her dutIes due to sIckness or InJury IS entItled In each calendar year to leave of absence wIth pay as follows (1) at regular salary for the portIOn of SIX (6) days that the ratIO of the employee's weekly hours of work bear to full-tIme employment, (2) at seventy-five percent (75%) of regular salary for an addItIOnal penod of that portIOn of one hundred and twenty- four (124) days that the ratIO of the employee's weekly hours of work bear to full-tIme employment. 712 An employee IS not entItled to leave of absence wIth pay under ArtIcle 71 1 untIl he or she has completed all of hIS or her regularly scheduled hours of work wIthIn a penod of four (4) consecutIve weeks It IS common ground that although the gnevor worked less than full-tIme hours SInce she returned to work under the accommodated work plan, under the collectIve agreement she stIll had the status of a full-tIme employee She was a full-tIme employee performIng part-tIme hours under an accommodated work plan due to her dIsabIlIty It IS to be noted also that the employer dId not dIspute that the gnevor's dIsabIlIty constItuted a "handIcap" wIthIn the meamng of S 10(1) of the Ontano Human RIghts Code With that background, I turn to the umon's two-pronged argument In support of the Instant gnevance ViolatIOn of ArtIcle 44 the umon's ImtIal posItIOn IS that qUIte apart from the gnevor's handIcap and the Ontano Human RIghts Code, the gnevor has met the condItIOn for elIgIbIlIty set out In artIcle 44.2 that 5 she complete "twenty consecutIve workIng days of employment" It IS agreed that In accordance wIth the accommodated work plan the gnevor dId not work on Tuesdays and Thursdays Thus It IS apparent that she worked alternate days and not consecutIve days However umon counsel pOInts out that artIcle 44 12 states, Inter alIa, that for the purposes of artIcle 44 days worked before and after any "leave wIthout pay" shall be consIdered consecutIve The umon takes the posItIOn that SInce the gnevor dId not work Tuesdays and Thursdays wIth the employer's consent, I e pursuant to the accommodated work plan, her absences on Tuesdays and Thursdays constItute leaves wIthout pay Therefore under artIcle 44 12 the days worked before and after those absences are deemed to be consecutIve If that IS the case, the gnevor had worked twenty consecutIve workIng days as reqUIred by artIcle 442 and had qualIfied for paid sIck leave under artIcle 44 1 The collectIve agreement does not define the phrase "leave wIth pay" However I have concluded that the umon's InterpretatIOn of artIcle 44 12IS not supportable by a reasonable readIng of the artIcle as a whole WhIle artIcle 44 12, In the first part, states that days worked before and after leaves of absence wIthout pay are deemed to be consecutIve, the partIes have In the last sentence of the artIcle, clearly stIpulated that days worked before and after an absence due to sIckness or InJury are not to be consIdered consecutIve The only reason the gnevor absented herself from work on Tuesdays and Thursdays was due to her dIsabIlIty whIch was a health problem. In other words, her absences on those days were due to sIckness Therefore days worked before and after are not to be consIdered consecutIve 6 It follows that the gnevor has not completed twenty consecutIve workIng days of employment as contemplated In artIcle 44.2 and therefore she was not entItled to paid sIck leave under artIcle 44 1 ContraventIOn of the Ontano Human Rights Code The second aspect of the umon's argument IS that even If the employer had acted In complIance wIth the collectIve agreement, by dOIng so the employer had contravened the Ontano Human RIghts Code by dISCnmInatIng agaInst the gnevor because of her handIcap Employer counsel drew my attentIOn to a number of authontIes whIch draw a dIstInctIOn between nghts In the nature of compensatIOn on the one hand, and non-compensatory nghts related to access to employment on the other when ImpOSIng the oblIgatIOn on employers to treat ItS employees wIthout dISCnmInatIOn. Re Versa ServIces Ltd., (1994) 39 L.AC (4th) 196 (RM. Brown) affd. Ont. DIV Ct. Feb 7 1995 Re Golden Manor Home For The Aged, (1996) 53 L.AC (4th) 353 (DavIe) Re Cambndge Memonal HosPItal, (1999) 79 L.AC (4th) 392 (Barrett) Re George Brown College of ApplIed Arts and Technology, unreported decIsIOn dated August 3 2000 (Howe) The foregoIng decIsIOns follow and apply the pnncIples establIshed by the leadIng authonty on the matter Re O.N.A v. OnllIa SoldIers Memonal HosPItal, (1999) 169 D.L.R (4th) 489 (Ont.C A) In that case the Court of Appeal restored the award of a Board of ArbItratIOn (whIch had been partIally quashed by the DIvIsIOnal Court) In so dOIng, the Court of Appeal found that SInce 7 accrual of semonty was not compensatory In nature, depnvIng dIsabled employees of semonty accrual dunng penods when they were unable to work constItuted dISCnmInatIOn prohIbIted by the Ontano Human Rights Code On the other hand, the court agreed wIth the Board of ArbItratIOn that denYIng those same employees servIce accrual and employer contributIOn to benefits dunng such pen ods was not prohIbIted by the Human Rights Code because those were a form of compensatIOn In exchange for work performed. The court held that requmng work for compensatIOn was a bona fide occupatIOnal reqUIrement whIch could not be accommodated wIthout undue hardshIp Based on the foregoIng authontIes, the employer submIts that dIsallowIng the gnevor paid sIck leave In CIrcumstances where she had not met the servIce reqUIrements In artIcle 44.2 does not constItute dISCnmInatIOn prohIbIted by the Ontano Human Rights Code Counsel pOInts out that paid sIck leave IS compensatory In nature As an employee holdIng a full-tIme posItIOn, the gnevor was governed by artIcle 44.2 wIth regard to entItlement to paid sIck leave She was treated In exactly the same manner as all other full-tIme employees wIth regard to paid sIck leave DOIng so In relatIOn to a compensatory entItlement, It IS submItted, does not constItute dISCnmInatIOn vIOlatIve of the Ontano Human Rights Code The mere fact that paid sIck leave IS a form of compensatIOn does not, by Itself, assIst In determInIng whether there was dISCnmInatIOn contrary to the Code As the Court of Appeal dId In Re OnllIa SoldIers Memonal HosPItal (supra) one must first determIne the appropnate group for companson. RelYIng on the fact that the gnevor was a "full-tIme employee" for purposes of the collectIve agreement, the employer has treated other full-tIme employees In ItS employ as the 8 appropnate comparator group SInce It treated the gnevor the same as the members of that group the employer's posItIOn IS that there was no vIOlatIOn of the Code In the Board's VIew In the gnevor's partIcular cIrcumstances, the appropnate comparator for the gnevor IS not the group of full-tIme employees The employer's relIance on the fact that the gnevor occupIed a full-tIme posItIOn under the collectIve agreement IS mIsplaced. ComplIance wIth the stnct terms of a collectIve agreement IS not always an answer to an allegatIOn that the Ontano Human RIghts Code has not been complIed wIth. SometImes, the applIcatIOn of the stnct terms of the collectIve agreement must be altered In order to comply wIth the Code provIded It can be done wIthout undue hardshIp ThIS, In the Board's VIew IS such an Instance Although the gnevor's posItIOn was categonzed as "full-tIme' under the terms of the collectIve agreement, In realIty the gnevor was only expected to and dId only perform, part-tIme hours She dId not perform full-tIme dutIes as the other full-tIme employees dId. In these cIrcumstances, accordIng to the employer's approach, she could never satIsfy the "twenty consecutIve days" reqUIrement applIcable to full-tIme employees because by the very terms of employment agreed to she only worked alternate days At the same tIme, sInce her posItIOn was categonzed as "full-tIme" she was not entItled to earn paid sIck leave the way other employees performIng part-tIme hours dId. The result IS she contInues to work regularly but IS demed the nght to earn paid sIck leave altogether Whereas every other employee workIng part-tIme hours earned paid sIck leave In proportIOn to the amount of work performed, she earned nothIng In return for the work she performs 9 In the Board's VIew In determInIng the appropnate group for companson, the gnevor's de facto status must govern. SInce she regularly worked only part-tIme hours under an arrangement wIth the employer the appropnate group for companson purposes IS the group of regular part-tIme employees In the employer's employ Once a comparator group IS determIned, the employer's oblIgatIOn under the Code of affordIng equal treatment wIth regard to matters relatIng to compensatIOn IS aptly descnbed by arbItrator DavIe In Re Golden Manor Home for the Aged, (supra) at p 370 as follows A narroYf, notion of equal treatment IS applIed when It IS Said that all must be treated the same wIthout regard to handIcap It IS thIS narrow notIOn of equal treatment whIch IS brought to bear on matters relatIng to "compensatIOn" wIth the result that persons wIth a handIcap are to be remunerated In the same way as those wIthout a handIcap Conversely If employees wIthout a handIcap do not receIve compensatIOn In partIcular cIrcumstances, then handIcapped employees have no complaInt If they are sImIlarly treated and also do not receIve such compensatIOn. ApplYIng such a narrow notIOn of equal treatment to matters of compensatIOn has the result that handIcapped employees absent from work are not entItled to wages any more than non-handIcapped employees absent from work are entItled to wages Regular part-tIme employees of the employer are afforded paid-sIck leave under artIcles 71 1 and 71 2 In proportIOn to the amount of work performed. The gnevor lIke the members of that group also worked part-tIme hours The gnevor IS entItled to no more, and no less, than the entItlement enJoyed by those part-tIme employees She IS not entItled to earn paid sIck leave for work not performed. However for there to be equal treatment, she must earn paid sIck leave In proportIOn to the work she does perform, In the same way other employees performIng part-tIme work do 10 The partIes agreed that the Board should determIne the lIabIlIty Issue and remaIn seIzed, gIVIng the partIes the opportumty to agree upon a remedy for any lIabIlIty found. I have concluded that the employer had an oblIgatIOn under the Human Rights Code to treat the gnevor under artIcle 71 In the same manner as the employer's other employees who performed part-tIme work. GIven that the employer dId not assert that dOIng so would cause the employer an undue hardshIp I hereby find that the manner the gnevor was treated wIth regard to paid sIck leave constItuted dISCnmInatIOn because of her handIcap In contraventIOn of the Code The partIes are dIrected to attempt to agree upon the remedy floWIng from the Board's findIng. I remaIn seIzed In the event the partIes are unable to do so Dated thIS 14th day of February 2001 at HamIlton, Ontano ~ . ..... ... . , ,. '.. :"'. ',' .'.'.:. .. '., ...:; ~.. ': ,. . .. . ,..<<~.~~~w. Nimal V DIssanayake Vice-Chairperson