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HomeMy WebLinkAbout2010-1155.Flannery.11-04-21 Decision en.n EiJJpIo)II!es Grievance Settlement Board smte mo 180 IJlndas 51. WesI TCJRJrm. QBiD IofiG 1ZB Tel (4-16) 326-1388 Fax (4-16) 326-1396 Commission de riglemenl des griefs des~dela CoIfinJe ~ Ibeau mo 180. rue IJlndas Ouest. T CJRJrm (OnIario) IofiG 1ZB Tel: (4-16) 326-1388 TeIec. : (4-16) 326-1396 Ontario GSB# 2010-1155 UNION# 2010-0154-0008 IN llIE MATTER OF AN ARBITRATION Under llIE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Flannery) -and - The Crown in Right of Ontario (Minisby of Community and Social Services) Michael Watters Mihad Fahmy Counsel Peggy Smith Barristers and Solicitors Caroline Cohen Senior Counsel Ministry of Government Services Labour Practice Group April 6, 2011 Union Employer Vice-Chair -2- Decision [1] At the outset of the hearing, the parties provided the following Agreed statement of Fads: 1_ The Grievor, Robert Flannery, is a Caseworker for the Ontario Disability Support Program, Southwest Region (Windsor Office). Operations Division, Ministry of Community and Social Services_ He was hired into this role on May 1. 1989. The Griever is 55 years old (and is eligible for pension at age 65)_ 2_ The Griever suffered a WSIB-approved workplace injury on December 3, 1990. The Grievor reported a reoccurrence to his original daim on June 9. 2005 and incurred intennittent lost time related to his injury from June 9, 2005. through September 10, 2009_ 3_ The Grievor's claim is governed by the .pre-1992" workers compensation legislation. He is receiving a 25% NEL 4_ In September 1991, the Grievor underwent surgery as a result of his workplace injury. Alter resuming regular work in late 1991. the Griever continued to perfonn regular work through 1992. 1993 and 1994_ Through this period. there was lost time direcUy atbibuted to the workplace injury and surgery. 5_ The grievor was given a zero fubJre economic loss (FEL) award on December 18, 1994. in relation to his absence in 1991, atbibuted to his injury and surgery_ 6_ The Griever submitted a medical note dated September 10, 2009 whidl stated that he .can no longer work due to dlronic. severe pain in his cervical spine. He will remain off work until his assessment with the neurosurgeon Dr. Maurisutti on January 12, 2010. We will re-evaluate his status following this appointment" 7_ The grievor remained off work from September 11, 2009 to January 17, 2010. He received full pay wiIhout use of vacation aedits pursuant to artide 41.2 until October 27. 2009. Thereafter, pursuant to article 41_3. he accessed his vacation aedits to top up the amount he was receiving from WSIB. until his return to work on January 18, 2010. -3- 8_ The Griever returned to work on January 18, 2010 with resbictions and limitations approved by the WSIB that the program area was able to accommodate, induding working 4 consecutive days per week only indefinitely. The Griever worked 4 hours per day for the first two weeks and six hours per day for the next two weeks, before returning to a full eight hour day. In accordance with these resbiclions. the Griever did not work on the following Fridays: January 22, 29, February 5. 12. 19 and 26. He used vacation credits for these days. (The parties advised that the last two of the aforementioned dates are in dispute but that they are only relevant for purposes of remedy). 9. The employer has appealed the WSIB's decision accepting the limitation that the griever only work 4 consecutive days per week. The WSIB has not issued a decision on the appeal. 10. By letter dated December 18, 2010 (should read December 18, 2009) Oetter attached) the WSIB advised the Griever that '1or all daims when the accident date is prior to January 1998 and a Non Economic Loss (NEL) Award is in order, a Future Economic Loss (FEL) award is then considered by the Board_ This sbielly relates to changes in earnings capacity as a result of the work injury.- His FEL benefit was approved by WSIB and is 90% of the difference between his pre-accident net average earnings (inaeased by the cost of living) and his projected net average earnings. The employee's projected pre-accident net earnings are $592_66Iweek (as of December 16, 2009) and the employee's projected net average earnings are $592.66Iweek. The FEL benefit is 90% of the difference less indexing requirements. Therefore, although the WSIB acknowledged that the employee experienced impairment due to his injury, there is no wage loss and the employee cannot be paid for hours missed. 11. On January 21, 2010 the Griever advised his manager that the WSIB adjudicator confirmed the information in the December 18,2010 letter (should read December 18, 2009) and no supplemental benefits would be paid for lost wages_ The Griever also advised his manager that the WSIB adjudicator had advised him that the calculation is not a decision and therefore could not be appealed. 12.0n January 21,2010 and February 3,2010 the griever's manager verbally advised him that he should explore his WSIB appeal options and provided several contact names induding the WSIB Specialist at OPSEU Corporate, Allen Jones. -4- 13_ The employer notified the grievor verbally on January 18th, 2010 and in writing on February 16, 2010 (letter attached) that in accordance with Micle 41_5 of the Collective Agreement. he would not be compensated for his inability to work the 5" day of every week_ 14_0n February 26,2010 the Grievor's physician cleared him to return to work full lime hours until the issue of payment for the 5th day could be resolved (letter attached)_ 15_AIso by letter dated February 16, 2010 (letter attached), the WSIB advised the grievor that where his a.urent earnings. working four days per week, do not result in a wage loss, he will not receive benefits_ 16_ The employee originally filed three grievances in relation to the issues above_ One of the grievances, filed February 19, 2010. was resolved following Stage T wo_ There are two grievances proceeding to the Grievance Settlement Board_ 17_ other than the issue of payment for his 5th shift. which is the subject of Grievance #1 dated February 17, 2010. there were no issues regarding his return to work in January 2010_ 18_ln grievance #1: the Grievor alleges that he should be compensated by the Employer for his inability to work every 5th workday_ The Griever alleges that he is entitled to use STS aedits on these days_ The Employer's position is that Micle 41_5 of the OPSEU Collective Agreement prohibits the payment of STSP in these ciraJrnstances_ [2] The issue between the parties, simply stated, is whether the griever is entiUed to use the Short Term Sickness Plan (STSP), and be compensated thereunder. in respect of his inability to work every fifth (5th) workday_ The parties asked that I first determine whether article 41_5 of the collective agreement precludes such enliUement and to defer until the next hearing date any consideration as to the applicability of the Human RiQhIs Code_ In accordance with such request. this Decision is focused solely on the question of whether the grievor can access the STSP under the provisions of the collective agreement -5- [3] The relevant provisions of the collective agreement react: ARTICLE 41 - WORKPLACE SAFETY AND INSURANCE 41.1 Where an employee is absent by reason of an injury or an occupational disease for whidl a daim is made under the Workplace Safety and Insurance Act, his or her salary shall continue to be paid for a period not exceeding thirty (30) days. If an award is not made. any payments made under the foregoing provisions in excess of that to whidl he or she is entiUed under Arlides 44.1 and 44.6 (Short T enn Sickness Plan) shall be an amount owing by the employee to the Employer. 41.2 Where an employee is absent by reason of an injury or an occupational disease for whidl an award is made under the Workplace Safety and Insurance Act, his or her salary shall continue to be paid for a period not exceeding three (3) consecutive months or a total of sixty-five (65) working days where such absences are intermittent, foIloviing 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 aedits_ 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 period set out in Miele 41.2 and the employee has accumulated aedits, his or her regular salary may be paid and the difference between the regular salary paid after the period set out in Artide 41.2 and the compensation awarded shall be converted to its equivalent time and deducted from his or her accumulated aedits. 41.4 Where an employee receives an award under the Workplace Safety and Insurance Act, and the award applies for longer than the period set out in Mide 41.2 (i.e. three (3) months). the Employer will continue subsidies for Basic Ufe. Long T enn Income Protection, Supplementary Health and Hospital and the Dental Plans for the period during which the employee is receiving the award_ The Employer shall continue to make the Employer's pension conbibulions unless the employee gives the Employer a written notice that the employee does not intend to pay the employee's pension conbibulions_ 41.5 Where an employee is absent by reason of an injury or an occupational disease for whidl an award is made under the Workplace Safety and Insurance Act, the employee shall not be entiUed to a leave of absence with pay under Miele 44 (Short Term Sickness Plan) as an option foIloviing the expiry of the application of Miele 41.2_ ARTICLE 44 - SHORT TERM SICKNESS PLAN -6- 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: (a) with regular salary for the first six (6) working days of absence, (b) 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. [4] It is the Union's position that artide 41_5 does not apply to an employee, like the instant grievor. who has rebJmed to active employment and whose absences are part of a pennanent workplace accommodation. Counsel suggested, rather, that it applies to situations such as the following: I. an employee who has had consecutive absences after an injury and who has exhausted the artide 41.2 entiUements. but is still not fit to rebJrn to work; II. an employee who has had intermittent absences and who has exhausted the artide 41_2 entiUemenls, but is still not fit to return to work; and possibly, 111_ an employee who has returned to work and has had occasional or intermittent absences related to a flare-up of an initial injury, but who has exhausted the artide 412 entiUemenls. On her analysis, all of the above sibJations are distind from this case, as the grievor here has returned to work under a modified work plan which is expected to be pennanenl Counsel submitted that. in the cira.unstances, the grievor has amoved into a different regime- and, more specifically. from the -WSIB world to the accommodation wortd:' Counsel argued that it is irrelevant that the WSIB has accepted the resbictions identified by the grievor's physician_ She noted that the Employer, in conjunction with the grievor, is now bound to implement same_ -7- [5] Counsel advanced the further arguments in support of the Union's position that article 41.5 is inapplicable in this instance: I- In this case. the grievor"s absences are regular and predictable, ie_ the fifth day of every work week. Counsel asserted that article 41 contemplates more sporadic absences whicl1 are related to a reoccurrence of a WSIB approved injury; II- The words 'eave of absence. in article 41.5 implies an extension of the employee's time away from work, mucl1 like the grievor's situation post October 27.2009. On counsel's interpretation, the words .Ieave of absence" would not capture a person actively at work under an acconvnodation; 111_ Counsel noted that the opening language of articles 41.2 and 41_5 is identical as both read: -where an employee is absent by reason of an injury or an occupational disease for whicl1 an award is made under the Workplace Safety and Insurance Act____"_ On her reading, this language envisages an absence closely connected to the initial injury and that is in close proximity thereto in a temporal sense. Counsel argued that the absences here in issue are not by reason of the initial injury but, instead. are the result of a permanent disability whicl1 must be acconvnodated. She further observed that the WSIB approved injury occurred in 1990, over twenty (20) years ago; and IV_ Counsel submitted that if the parties had intended to preclude a person in the grievor"s circumstances from accessing the STSP, then mucl1 clearer language would have been used to express sucl1 intent, partiaJlarty given the significant impact article 41.5 could potentially have on employees suffering from a disability. For this reason, I was asked to read article 41.5 narrowly and to exclude its applicability to persons on a workplace acconvnodation_ [6] For the above reasons. the Union asks that I find that article 41.5 does not preclude this grievor's access to the STSP. -8- [1] In response, counsel for the Employer referenced the griever's lengthy involvement with the WSIB following his initial workplace injury in 1990_ More specifically, she observed that such injury. his subsequent absences both consecutive and intermittent. and the recent resbictions established by the grievor's physician have all been accepted by the WSIB_ Indeed. counsel desaibed the resbictions as a "WSIB modified work program- _ Counsel further referenced the fad that the grievor has received a FEL award from the WSIB. albeit on a sustainability basis only given that his projected net average earnings exceed the pre-accident net average earnings_ Simply put. it is the position of the Employer that the WSIB provides a complete statutory regime which sets out the compensation entiUements of persons who suffer a work related injury or illness_ Counsel submitted that a person, such as the grievor, is resbicted to those entiUements. subject only to the additional benefits negotiated by the parties and contained within article 41 of the collective agreement [8] Counsel reviewed the provisions of article 41 and provided her assessment as to their purpose and function in respect of employees who have claimed and/or received WSIB benefits_ In this regard, she made the following observations: article 41_2 contemplates intennittent absences, similar to those experienced by the grievor under his modified workplan; article 41_3 provides for the use of accumulated aedits to top up the WSIB award to the level of the employee's regular salary; and that article 41_4 sets out the Employer's on-going obligation to continue subsidies for the benefits identified and to make pension conbibutions_ Counsel submitted that these provisions comprise the totality of the grievor's -9- entiUement under the collective agreement On her reading, arlide 41_5 dearty and unambiguously states that an employee absent from work due to injury or occupational disease, in respect of which a WSIB award has been made, shall not be entiUed to a leave of absence under the STSP following the expiry of the application of arlide 41.2. Counsel argued that this express language makes it dear that such absences are to be treated under the WSIB regime, rather than by recourse to arlide 44_ Put another way, she submitted that the griever is not entiUed to access the STSP in respect of a WSIB absence, such as the ones occurring on the fifth day of each work week. Counsel further asked that I provide a narrow interpretation of artide 41.5 consistent with her analysis of the relationship between the stahrtory and the collective agreement schemes. [9] Counsel's response to the Union's submissions may be sunvnarized as follows: I. While the griever cannot be compensated for the fifth day through the STSP, he may use accumulated credits to top-up his salary; II. Counsel asserted that the griever's situation is indistinguishable from the third example cited by Union counsel to which arlide 41.5 might apply. Additionally, she submitted that predictability of the absences is not determinative and that. in any event, the predictability existing here has been recognized by the WSIB; 111_ Arlide 41.5 speaks of 'eave of absence- because that is the language used in arlide 44 to desaibe sick: leave Counsel argued that one (1) day of absence under the STSP would represent a leave of absence under the plan; and IV_ The identical language of artides 41.2 and 41_5, relied on by the Union in its argument. fully captures the circumstances of this griever. Counsel emphasized that the WSIB has accepted that his permanent disability was -10- caused by a workplace injury. She noted that such injury has led directly to the absences here being considered. [10] For the above reasons, the Employer asks that I dismiss this aspect of the grievance on the basis of a finding that article 41.5 precludes the griever from accessing the STSP in all of the cira.unstances of this case_ I was referred to the following authorities in support of this position: OPSEU (McNally) and Minisbv of TranSDOrtal:ion. GSB File No_ 2000-0306, 2000-1542. October 16,2003 (Brown); OPSEU (Hauth) and Minisbv of the Solicitor General and Correctional Services. GSB File No_ 1141-99, 1145-99, September 26. 2000 (Mikus); and OPSEU (Monk) and Minisbv of Community Safety and Correctional Services and Minisbv of Children and Youth Services, GSB File No. 1995-1694. April 29, 2010 (Gray)_ [11] On my view of the facts. as stated, the griever's absences on the fifth day of the work week are by reason of an injury for which an award has been made under the Workplace Safety and Insurance Act Unfortunately for the griever, the injury first sustained in late 1990 has had long standing effects, including both intermittent and consecutive absences and, most recenUy, has resulted in the need for a permanent workplace acconvnodation_ I accept the Employer's submission that the griever's situation is caphJred by the opening language of article 41.5 in the sense that all of the absences. and the present need for accommodation, result direcUy from the initial injury and its aftermath. In this regard, I have not been persuaded that article 41.5 is intended to only apply to absences in close proximity to the date of injury for which WSIB is approved. It is also apparent that WSIB awards have been made relating to the griever's -11- workplace injury_ The Agreed Statement of Facts reference both the NEL and FEL awards_ LasUy, it is not in dispute that the grievor is a person whose arlide 41_2 entiUements have expired_ On the facts. that occurred on October 27, 2009_ [12] I do not see anything in the contracluallanguage which would serve to exdude regular and predictable. in contrast to sporadic, absences from the application of artide 41_5_ Additionally. I do not think that anything turns on the use of the phrase 'eave of absence- in that arlide_ The same wording is found in arlide 44_1 to describe an absence eligible for coverage under the STSP _ On a plain reading of artide 44_1, a leave of absence wiIh pay could be of short duration measured in terms of days or for that matter, as here, a single day in a work week_ In the final analysis. I cannot agree that the indusion of the words aleave of absence- in artide 41_5 contemplates an extension of time off from work and that the provision has no application to an employee who has returned to work wiIh the permanent requirement for a regular day off for purposes of an accommodation_ If that was the parties initial intent. I consider it more likely than not that more precise language would have been used to communicate such intent This is particularly so, given that article 41 in its entirety is designed to itemize the additional benefits an employee wiIh a workplace injury is entiUed to receive over and above those provided by the WSIB_ [13] After reviewing the Agreed Statement of Facts, the submissions of the parties and the decisions cited, I conclude that the circumstances of this griever fall -12- squarely within arlide 41.5. As a consequence. he is not entitled to resort to the STSP under artide 44. This aspect of the grievance is accordingly dismissed. Dated at Toronto this 2151 day of April 2011. M.V. Watters, Vice-Chair