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HomeMy WebLinkAbout2016-0737.Union.21-03-25 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2016-0737 UNION# 2016-0999-0050 Full list of files attached in “Appendix A” IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel HEARING December 21, 2020 - 2 - Decision [1] I have before me a Union grievance and twenty-four individual grievances. These grievances challenge the Employer’s application of a lump sum provision that was operative during the period of time covered by the 2015-2017 Collective Agreement. The focus in the instant case was on the Union grievance dated June 3, 2016, and a no prima facie case motion made by the Employer. The parties agreed to deal first with the Employer’s no prima facie case motion with the Employer reserving its right to pursue three other preliminary objections, one of which is that the grievances are inarbitrable because the lump sum provision, although agreed to by the parties, is not part of the Collective Agreement. [2] The lump sum provision reads as follows: Appendix B U18 – Without Precedent and Prejudice 3. Lump Sum Payment Effective January 1, 2016, a one-time 1.4% lump sum payment based on base salary earnings in the 2015 calendar year. The following language does not form part of the collective agreement. All OPSEU employees as of January 1, 2016, including employees on approved leaves of absences and employees temporarily assigned to a position out of the bargaining unit, shall be entitled to a one-time lump sum payment equal to 1.4% of earned base salary less statutory deductions. The determination of earned base salary shall be calculated based on payment of wages earned for regular hours worked in the 2015 calendar year in an OPSEU-represented position (including pay in lieu of vacation leave where applicable) and payment for approved leaves as covered by the Collective Agreement in the 2015 calendar year while assigned to an OPSEU- represented position. This lump sum payment shall not alter an employee’s earned base salary for any purpose. [3] There is no dispute about which OPSEU employees are entitled to the lump sum payment. Employees entitled to the payment are those who on January 1, 2016 were OPSEU employees, including employees who were temporarily assigned to a - 3 - position out of the bargaining unit and employees on approved leaves of absences. The disagreement about the interpretation of the lump sum provision is over which payments received by OPSEU employees on an approved leave of absence are to be utilized in calculating the 1.4% payment. The language in dispute can be narrowed down to the following words: “The determination of earned base salary shall be calculated based on …payment for approved leaves as covered by the Collective Agreement in the 2015 calendar year…” [4] The Union had provided the Employer with an outline of its case which I will refer to as the Union’s particulars. The Employer had prepared a 17 page document following the filing of the Union grievance which set out various scenarios to illustrate which payments were to be included in calculating the 1.4% payment, based on the Employer’s interpretation of the relevant language. This Scenarios document is referenced in the Union’s particulars. The particulars relied on by the Union are as follows: The case involves the following: 1. OPSEU members who were employees on January 1st 2016, were to receive a 1.4% lump sum payment in regards to their 2015 base salary as follows: All OPSEU employees as of January 1, 2016, including employees on approved leaves of absences and employees temporarily assigned to a position out of the bargaining unit, shall be entitled to a one-time lump sum payment equal to 1.4% of earned base salary less statutory deductions. The determination of earned base salary shall be calculated based on payment of wages earned for regular hours worked in the 2015 calendar year in an OPSEU-represented position (including pay in lieu of vacation leave where applicable), and payment for approved leaves as covered by the Collective Agreement in the 2015 calendar year while assigned to an OPSEU-represented position. This lump sum payment shall not alter an employee’s earned base salary for any purpose. 2. The parties engaged in a number of discussions with respect to the entitlement, and the Employer created an entitlement chart following the filing of the grievance. 3. The Employer advised that they did in fact make payments to employees in accordance with this chart. If there is anyone who was not paid in accordance with the chart, there is no dispute between the parties that they are entitled to the payment as set out in the chart. - 4 - 4. No settlement was signed with respect to these grievances. 5. When the Employer’s interpretation document is reviewed in its entirety, a number of inequities arise. 6. For example, the entitlement for Maternity/Parental leave is set out at page 3. The Employer paid 1.4% on all amounts which were paid directly by the Employer (top-up), but they have not paid the 1.4% in regards to EI payments. An individual off on Maternity/Parental leave would have received the 1.4% on all of their earnings, but for the fact that they were off on Maternity/Parental leave. As a result of their leave, they did not receive 1.4% on the earnings they received from EI. This is similar for Family Medical Leave as per page 4. 7. The payment for WSIB benefits is detailed at pages 8 and 9, and employees would be paid 1.4% for any amounts paid by the Employer, including amounts paid as top-up. They would not be paid 1.4% for any payments received from WSIB directly. These individuals would receive the 1.4% on all earnings if they were actively at work. As a result of their injury/disability, however, they do not receive the 1.4% on any of the payments they receive from WSIB. 8. All individuals off due to illness are not treated in the same way. With respect to LTIP (detailed at page 8), the employee would be paid 1.4% on the LTIP amounts, even though they did not pay them directly (the payment would come from Manulife), as the payment is provided for under the Collective Agreement. This is similar for STSP as per page 7 (though STSP is paid directly by the Employer). 9. Employees receiving income from another source, including EI and WSIB benefits, are clearly on an “approved leave of absence” and therefore they are entitled to the 1.4% payment. 10. The issue is the calculation of their entitlement based on “earned base salary”, in accordance with the language. The language states that the earned base salary includes “payment for approved leaves as covered by the Collective Agreement”. With Pregnancy Leave, for example, it is an approved leave contemplated by the Collective Agreement even though part of the payments received come from a third party. These payments form part of the earned base salary and therefore the 1.4% should be paid for all earnings including those from EI. The same would apply for WSIB, or any other approved leave where an employee is paid by a third party. 11. The Union is further concerned that the interpretation is discriminatory and contravenes the Ontario Human Rights Code. For example, a pregnant employee loses the 1.4% because of their pregnancy. An injured employee loses the 1.4% not only because of their injury, but because the injury occurred in the workplace. An employee injured outside the workplace who receives LTIP is - 5 - entitled to the 1.4%, but an employee injured in the course of their employment duties does not receive it because they are paid by WSIB. 12. The Union’s position is that the 1.4% should be paid on all earnings, including earnings from a third party such as EI and WSIB. [5] The Union referred in its particulars to a number of approved leaves that are referenced in the Collective Agreement. As one would expect, the Employer’s payment obligations for leaves of absences are set out in the Collective Agreement. Family Medical Leave is not a leave paid by the Employer. Any OPSEU employee granted such a leave can apply for and may receive EI benefits. In the case of Maternity/Parental leaves, the OPSEU employee is in receipt of some “top up” monies from the Employer, but primarily relies on EI benefits. An employee on WSIB will be paid by the Employer for the first 65 days, and then thereafter paid only by the WSIB. An employee off work due to sickness or injury receives payment from the Employer under the Short Term Sickness Plan (“STSP”). An employee receiving a Long Term Income Protection (“LTIP”) benefit in effect receives payment from the Employer, although the payment is made through Manulife. [6] The central question raised by the Union grievance is whether payments made to entitled OPSEU employees in 2015 by third parties are to be included in the calculation of the 1.4% payment. The submissions of counsel on this central question can be summarized as follows. [7] The Employer’s position on the interpretation of the lump sum provision is quite straightforward. Counsel for the Employer argued that the parties clearly intended from the language of the provision that the amounts used for calculating the 1.4% payment are only payments made to OPSEU employees on a leave of absence that are covered by the Collective Agreement and are paid therefore by the Employer. Counsel submitted that this is the only possible interpretation of the words “payment for approved leaves as covered by the Collective Agreement…” Counsel indicated that the payments the Employer made to OPSEU employees on Maternity/Parental leaves, on WSIB, and to employees on the STSP and LTIP are payments that are covered in the - 6 - Collective Agreement and therefore were used to calculate their lump sum payment. Counsel noted the EI benefits paid to employees on Maternity/Parental leaves and WSIB payments are not payments that are covered by the Collective Agreement and he submitted that they were appropriately excluded from the calculation of their lump sum payment. Counsel argued that the language of the lump sum provision would be quite different if the parties had intended to include these third party payments when calculating the 1.4% payment because the parties would have had to address a method for determining and informing the Employer of what payment amounts had been received from the third parties by employees on leaves of absences. Counsel submitted that the absence of any language to address this practical issue confirms that the Employer’s interpretation of the provision is correct. Counsel also relied on the principle that the provision of a monetary benefit must be clearly established and cannot be inferred. Counsel submitted that the lump sum provision does not contain the clear language that would be necessary to support the Union’s interpretation of the provision. Counsel argued that the Union’s particulars do not make out a prima facie breach of the lump sum provision having regard to the correct interpretation of the provision. Employer counsel relied on the following two decisions: OPSEU (Vitorino et al.) and Ministry of Government Services (2010), GSB Nos. 2009-1293 et al. (Abramsky) and OPSEU (Union) and Ministry of Government Services (2012), GSB No. 2010-0405 (Abramsky). [8] The Union’s submissions focused on two positions. On the relevant language of the lump sum provision, Union counsel argued that the parties intended that any payment to OPSEU employees would be used to calculate the 1.4% payment as long as the leave was approved and contemplated by the Collective Agreement. Counsel argued that the language does not make a specific distinction about the source of any payment so that all of the payments received by OPSEU employees on Maternity/Parental leaves and on WSIB are required to be used in calculating the 1.4% payment, irrespective of the source of the payment. Counsel argued that the Union’s particulars are capable of establishing a breach given the language of the lump sum provision. - 7 - [9] The Union’s second position is that the different treatment of OPSEU employees on approved leaves as a result of how the Employer has applied the lump sum provision has resulted in an adverse impact based on a prohibited ground contrary to the Ontario Human Rights Code (“the Code”). Counsel noted that the lump sum payment is not a work driven benefit since the determination of earned base salary includes payments received by employees on approved leaves who are obviously not active in the workplace. Counsel submitted that distinctions in the calculation of the 1.4% payment are being made based on the type of leave of absence that an OPSEU employee is on. Counsel noted that OPSEU employees in receipt of EI benefits or in receipt of WSIB benefits after 65 days would have received the 1.4% payment based on all of their earnings but for the fact that they were on approved leaves of absences. Counsel further noted that payments are included in the calculation of the 1.4% payment if an employee is receiving payment for a non-work related illness or injury, but not included if an employee had been injured at work and was off work for longer than 65 days. Although noting that this is not a circumstance of intentional discrimination by the Employer, counsel argued that there is inequitable treatment on a prohibited ground by treating payments differently depending on the type of leave of absence and that this can support a violation of the Code and the Collective Agreement to defeat the Employer’s motion. [10] In reply to the Union’s Code position, Employer counsel argued that the key distinction that matters in calculating the 1.4% payment is the type of Collective Agreement payment made to an employee, not the type of leave of absence that an OPSEU employee is on. Counsel pointed out that Family Medical Leave is not a paid leave under the Collective Agreement, but the Union’s position would require that any EI benefits received by an OPSEU employee on such a leave of absence be included when calculating the 1.4 % payment, even though the relevant language does not explicitly provide for such a result. Counsel argued that distinguishing payments for purposes of calculating the 1.4% based on whether the employee received the payment from the Employer based on a Collective Agreement entitlement or from a third party when no Collective Agreement entitlement exists does not establish a prima facie contravention of the Code. - 8 - [11] The parties agreed that the appropriate test to apply on a no prima facie case motion is the one set out as follows in OPSEU (Martin et al.) v. Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB): The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it had provided particulars which, if true, would result in a finding of a breach of the application of that theory, the motion should be dismissed. [12] I am prepared to apply the above test having regard to the agreement of the parties. I have assessed the Union’s particulars against the Union’s Code theory of the case. I am of the view that the Union’s Code theory is reasonable and based on the particulars, if true, could result in a finding that there had been a breach of the application of that theory. Accordingly, the Employer’s motion is dismissed. Consistent with the expectation of the parties and the GSB jurisprudence, I will not provide reasons for this determination. Dated at Toronto, Ontario this 25th day of March, 2021. “Ken Petryshen” Ken Petryshen, Arbitrator - 9 - Appendix “A” GSB Numbers Union Numbers 2015-3262 2016-0252-0001 2016-0045 2016-0211-0002 2016-0090 2016-0230-0003 2016-0091 2016-0230-0005 2016-0101 2016-0230-0004 2016-0102 2016-0230-0006 2016-0163 2016-0368-0035 2016-0164 2016-0368-0036 2016-0195 2016-0234-0079 2016-0216 2016-0234-0083 2016-0293 2016-0234-0096 2016-0294 2016-0234-0097 2016-0295 2016-0234-0098 2016-0301 2016-0252-0004 2016-0332 2016-0135-0015 2016-0404 2016-0248-0006 2016-0532 2016-0252-0005 2016-0689 2016-0229-0007 2016-0797 2016-0368-0108 2016-0798 2016-0368-0110 2016-0815 2016-0234-0132 2016-0816 2016-0368-0111 2016-0960 2016-0467-0010 2016-1039 2016-0368-0109