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Home My WebLink About2009-0969.Kellar.11-06-13 DecisionCommission de Crown Employees Grievance Settlement UqJOHPHQt des griefs Board dHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pl. : (416) 326-1388 Fax (416) 326-1396 7pOpF GSB#2009-0969 UNION#2009-0449-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Sployees Union ervice Em (Kellar) Union - and - The Crown in Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFOREVice-Chair Richard L. Jackson FOR THE UNION Jodi Martin Paliare Roland Rosenberg Rothstein LLP Counsel FOR THE EMPLOYER Kylie Humphries Ministry of Health and Long-Term Care Employee Relations Advisor HEARING November 4, 2010. DECISION [1]This decision arises out of a dispute as to the proper interpretation of a Memorandum of Agreement that resulted from a day of mediated negotiation between the Ministry of Health and Long Term Care and OPSEU, on November 4, 2010. This was the third day of mediation between the parties concerning the grievances of Ms. Brenda Kellar. Given that the issue in GLVSXWH±ZKHWKHURUQRWWKHJULHYRU¶VVLFNEDQNVKRXOGKDYHEHHQUHFKDUJHGRQ-DQXDU\± is not explicitly mentioned in the memorandum of agreement, it is necessary to revert to the extrinsic evidence of what actually transpired during the mediation. Background [2]0V.HOODU¶VJULHYDQFHVFRQFHUned certain alleged circumstances at the work location of her home position, as a result of which she had spent some considerable time off on sick leave. As a result of a mediated negotiation on February 17, 2010, the grievor was placed in a temporary assignment elsewhere at her regular level of pay, an assignment that would end on October 15, 2010. In a second day of mediation, April 22, 2010, the parties agreed to write to WKHJULHYRU¶VSK\VLFLDQLQRUGHUWRGHWHUPLQHif, and under what conditions, the grievor might return to her home position. Unfortunately, however, the answers did not provide sufficient clarity, thus necessitating a third day of mediation on November 4 to deal with this problem. Early in the process on this day, the parties agreed to an independent medical examination (I.M.E.). Certain other issues arose during this mediation, however. [3]7KHJULHYRU¶VKRPHSRVLWLRQLVRQHthat requires certification inWKHIRUPRIDQ³(QWU\WR 3UDFWLFH´FRXUVHDQGWKHJULHYRUKDGEHHQDZD\from her home position long enough that, before she could return to her regular duties, she would first have to be recertified through this program. The parties agreed that the grievor would be sent on the next Entry-to-Practice course, which was starting on November 15 and continuing through to the end of January; they also agreed that she would be paid her full salary during that time. That meant, however, that between October 15, the end of her temporary assignment, and November 15, the start of the course, she would be back on sick leave. [4]The Union requested that the Employer tRSXSWKHJULHYRU¶V - 2 - break --- to be decided by me. The Employer would not agree and, after some more discussion, then put what amounted to a final offer to the Union: (1) the parties would proceed with an independent medical examination; (2) the grievor would go on the recertification course at full pay and expenses; (3) the grievor would receive no top-up of sick leave used during the October 15-November 15 period, and would be put back on sick leave during the Christmas break period. This was agreed in principle, with a written Memorandum of Settlement to be sent by the Employer representative to Counsel for the Union the next day, November 5. With two small changes, the agreement was signed. [7]7KHJULHYRU¶VVLFNEDQNZDVQRWUHORDGHGDVRI the beginning of the new year, and that is the issue before me. Arguments [8]The Employer takes the position that, because she was on sick leave on December 31 and January 3, under Articles 44.3 and 44.4 of the collective agreement, she was not entitled to have her sick bank topped up. [9]The Union argues that, under the particular circumstances of this case, those articles do not apply but, even if they did, the Employer should be estopped from relying on the strict terms of Article 44 because of the statement of the EmSOR\HU¶VUHSUHVHQWDWLYHGXULQJWKHPHGLDWLRQRQ ZKLFKWKH8QLRQUHOLHGLQDJUHHLQJWRWKH(PSOR\HU¶VRIIHU Decision [10]In the particular circumstances of this case, the strict terms of Article 44 should not apply. The only reason the grievor was on sick leave on both December 31 and January 3 is because the Entry-to-Practice training course that she was taking took a two-week break over the Christmas period that happened to include those two dates. Had it not done so, or had the course break HQGHGEHIRUH'HFHPEHURUHYHQEHIRUH-DQXDU\WKHQVKHZRXOGKDYHEHHQ³DWZRUN´DQG thus, entitled to the reloading of her sick-leave bank. In the particular context of this situation, being on sick leave during the two-week break inWKHFRXUVH±DQGWKHUHIRUHRQ'HFHPEHU DQG-DQXDU\±ZDVDVRUWRIFRQWULYDQFHDPHDQVWRDQHQG±DFRQYHQLHQWGHILQLWLRQRIWKH JULHYRU¶VVWDWXVWKDWZRXOGHQDEOHher to have some compensation over the Christmas break, JLYHQWKH(PSOR\HU¶VUHIXVDOWRFRQWLQXHKHUUHJXODr salary. It was, in effect, the logical and natural default position for both parties in face of WKH(PSOR\HU¶VUHIXVDOWRFRQWLQXHWRSD\KHUDW her regular rate over the break. For purposes of the Entry-to-Practice course, she was not sick; she was available, willing, and able to work. Had it not been for the enforced break, there would have been no issue to discuss. [11]These parties have worked extremely diligently, constructively, and in good faith through three days of mediation (and well beyond that on their own) in order to resolve these grievances in a creative, sensible, and helpful way for both the grievor and the Employer. To deny the grievor a replenishment of her sick-leave bank because the Entry-to-Practice course took a two- week break that happened to include these crucial dates is to take a much narrower and more legalistic interpretation of the situation than the discussion on November 4 reflects and than what - 3 - I am convinced these parties ever intended. Had such an outcome been recognized at the time, the parties would have devised anRWKHUDSSURDFK±LIQHFHVVDU\by the simple expedient of the JULHYRU¶VJRLQJRQOHDYHZLWKRXWpay during all or part of the break. Given the nature and uncertainties of this case, it was entirely obvious and predictable that the grievor might well need to continue on sick leave for some, possibly considerable, time in 2011, as the parties worked to deal with the results of the I.M.E, whatever they turned out to be. Indeed, that seems to have been exactly what has happened. [12]For all practical purposes, and in the particular context of the facts of this case, I consider WKHJULHYRUWRKDYHEHHQ³DWZRUN´IURP1RYHmber 15 though the end of January, and I am convinced that that was also the paUWLHV¶VHQVHRIWKHVLWXDWLRQDVUHIOHFWHGLQWKHVWDWHPHQWRIWKH (PSOR\HU¶VUHSUHVHQWDWLYHWRWKDW effect. Accordingly, then, the grievor is entitled to have her sick leave bank replenished, and it is so ordered. [13]In view of the foregoing, it is unnecessary for me to dealZLWKWKH8QLRQ¶VHVWRSSHO argument. th Dated at Toronto this 13 day of June 2011. Richard L. Jackson, Vice-Chair