Loading...
HomeMy WebLinkAbout1976-0086.Fournier.77-05-06&i/76 CROWN EMPLOYEES . . ‘416 964-6426 GRIEVANCE SETTLEMENT BOAR0 Suite 405 77 BZoor Street West TORONTO; Ontario MSS lM2 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: Mrs. Doris Fournier And Ministry of Health 0. M..Beatty - Chairman V. P. Harris - Member H. Simon - Member For the Grievor: A. J. Millard Ontario Public Service Employees Union For the Employer: I. Freedman, Counsel Ministry of Health Hearinq: April 21, 1977 Suite 405, 77 Blow Street West Toronto, Ontario 2. Mrs. 0. Fournier is employed as a Food Service Worker at the North Bay Psychiatric Hospital. As such she was entitled to a specific period of annual vacation leave which, during 1976, she coaanenced on July 14. It was her intention that her period of vaca,tion leave would endure from that date until July 25. However during the course of her vacation leave and _: specifically on July 16, Mrs. Fournier's husband passed away with the result that she and her son were required to leave ,z, for Quebec to attend at his funeral. That event took place ..I on July 19, 1976. However, and prior to leaving for the funeral, Mrs. Fournier called one of her imnediate supervisors to advise her of what had transpired. In the course of that conversation, it would appear that Mrs. Foornier was advised that she would be taken off her vacation leave and would instead be placed on bereavement leave. However, subsequently when she returned to work at the conclusion of her vacation, she was informed that in fact she was not entitled, in the circumstances which prevailed on July 16, to any bereavement leave and that the entire period of her absence, from July 14 until July 25 would, as originally intended, be credited against her vacation credits. It is against that-decision that Mrs. Fournier has filed this grievance. In its essence Mrs. Fournier's claim is that she was in fact entitled to bereavement leave in the circumstances described and that accordingly three of the days that~the employer presently has allocated to her vacation leave should be credited as bereavement leave. In short her claim is to have three days of her 1976 vacation leave restored to her credit. In advancing this claim, the grievor 3. “/ ; .:; has, at the hearing before us, sought to rely on two quite distinct arguments. In the first place, it was her contention that her entitlement to bereavement leave had been expressly recognized by'her supervisor and could not subsequently be revoked by some other member of Management. Put somewhat differently and in the language of Article 10 of the collective agreement; it was her contention that the employer could not, in light of her supervisor's assurances on July 16, now deny that it had agreed to suspend her vacation leave, treat her as being at work, and allow her to take the bereavement leave that was provided in the agreement. The second ground on which she supported her claim was, succinctly, Article 10 of the agreement. That provision stipulates: ARTICLE 10 - BEREAVZVEFT LEAVE 10.0 An employee who would other&se have been at work shall be allowed up to three days leave of absence with pay in the event of the death of his spouse, mother, father, mother-in-law, father-in-kw, son, daughter, brother, sister, son-in-km, daughter-in-law, grandparent, grandchild, uard or gum&an. In posing the issue in the manner which we have, we would acknowledge, at the outset, that the grievance form itself neither specifically claims the relief we have described nor identifies the initial ground on which this grievance was pursued at the hearing before us. However, having satisfied 'ourselves that the employer was aware of the substance of her claim and was not unfairly prejudiced by having to meet the specific issues we have noted above, we are of the view that it was not only proper, but as well that it made good industrial relations sense for us to deal with the substance and merits of her complaint notwithstanding the technical deficiency of the 4. i; 5. .’ ,~., grievance form itself. In doing SO and in seeking to resolve the merits of this dispute, this Board was following what we regard to be good industrial relations policy, standard arbitral practice, (see 'Cmvrdimt~hboti Ar&%~~tin Topic #2:3122) and recent judicial directives. SeERe Bet1 Canada'& Conamoricatwns him Crmada 119771 13 O.R. tzd) 570 IDitisionat Court). However'and while this Board will not allow undue technicalities and formalities to render a dispute inarbitrable, nevertheless this Board must be conscious of the finite and clearly delineated scope of our statutory jurisdiction. That is to say, this Board must be cognizent of the fact that, as described in 5.18(l) of the Crown Employees Collective Bargaining Act, our jurisdiction is rooted in the terms of the collective agreement and that apart from the matters described in s.17(2) of that same legislation, our sole task is to determine and resolve those matters "arising from the interpretation, application, administration or alleged contravention" of that agreement. Accordingly and aiainst that generally recognized delineation of our jurisdiction it follows that this Board is simply not competent to pass upon, let alone to give effect to the primary argument advanced on behalf of the grievor. Very simply and to the extent her claim is founded ufion the breach of oral understanding between herself and her supervisor, this Board is without jurisdiction to give effect to that agreement. Succinctly and as noted above, our jurisdiction iS li,mited to the four corners, of,the collective agreement and it is td another forum that one must seek redress for a breach of the kind of agreement that the greivor claims she made on July 16. 5. In this regard we would direct the parties attention to the following remarks of a board of arbitration which, when asked to give effect to a similar oral understanding between an employee and his employer, commented: In the first place the griever has not pointed to a. singte provision in tke agreement which rhquires our interpretation or which he atteges has been vio'kzted. Both by the terms of art. 7:01 and by the mandate contained in 9.37 of the Ontario Labour Relations Act, R.S.O. 1970, c.232, our jurisdiction is limited to disputes involving the cottective agreement. It is to the ordinary Courts that Mr. Page'must turn if he seeks to enforce the private agreement made between kimsetf and .; the Sisters of Charity. Re U.S.W. and Delta Steel Fabricating Ltd. '119681,~ 19 L.A.C. 400 (Adettl; Re Int't Chemical Workers Union and Chemical Developments of Canada Ltd. (19681, 19 L.A.C. 302 (Weatkeritl); Re Teamsters Local Union 91, and Taggort Service Ltd. 119651, 16 L.A.C. 217 IRanrakanl; Re U.A.W., Local 439, and Massey-Barris Co., Ltd. ~(19631, 4 L.A.C. 1437 (Futterl; Re V.E.W.. Local 523 and Page-Rersey Tubes Ltd. (19531, 4 L.A.C. 1375 (Fuller). Secondly, even if one could find Mr. Pagh's agreement to be appended to or incorporated into the collective agreement; to the eztent that arbitrators are confined in the+ jurisdiction to resoZve dispte$ relating to tke collective agreement, s.l(ll(el of the L&our Retatione Act confines our jurisdiction to "an agreement in writing . ..'I. A long tine of cases has hetd that by virtue of tkis definition an arbitrator can not enforce any orat undertaking: Re U.A.W., Laocal 525, and British Motor Corp. of CanaoYa Ltd.- (19651, 16 L.&C. 315 (Artkursl; Re Int't Ass'n of Machinists, Ledge 756, and Rickards-Wilcoq Cwzzdiun Co. LM. (1962/, 13 L.A.C. 182 Qungl; Re U.S.W., Locat 2901 and S. F. Bowser Co., Ltd. (Honilton) 11951/, 2 L.A.C. 751 Uaskinl; Re Bakery and Confectionery Workers' Int'l Union, Local 322, and Canada Bread Co. Ltd. (1970/, 22 L.A.C. 98 (Christie). c.f. Re U.A.W. and E. W. Bliss Co. (Canaokl Ltd. (19681, 19 L.A.C. 376 (Kreverl, and Re Bakery & Confectionery Workers', Local 284, and ShmJ Buking Co. Ltd. (1972), 24 L.A.C. 169 (Cwminghaml, where ~grut wulertukings may be used to estq a griever asserting .his rights under a collective agreement; that is where ths oratagreement ii usedas a defense to what woutdothezwise be a violation of the agreement. Thirdly, we wacM hotd that in tight of art. S.-O5 of the cottective agreement, evsn if we had jurisdiction to consider the griever's private~arrangement, we wouzd be 6. required to hold that private a.greement to be invaZid. Article 5:OS provides: 05 Entente Particuliere A-e entente particulie're relative aux conditions de tmvail entre M salarie' et 1'EmpZoyeur n'est vakzble, 2 mains qu'elZe n'ait re,m l'approbation &rite du Syndicat. Absent the written~npproval of the union, (and the griever offered tw evidence that it hasbeen givenl we would be required to find the private agreement to.be invalid. Finally, we would raise the very difficult problem of, whether, in addition to all of the above, notwithstanding that the oml agreement between the gr-ievor and Sister Martineau wzs entered into prior to the griever's entering the bmgaining wait in 1969, such a private agreement between an ina?Xdual employee and his employer must give way when the former enters the bargaining unit and is employed on the terms set out in the collective agreement. Certainly, to the extent the private agreement is in conflict with the collective agreement it must fal2. Whether an employee can validly enter private crrangements by which he secures benefits additional to those set out in the collective agreement arguably nay, in certain limited circumstanoes, be a different issue see J. I. Case Co. v. N.C.R.B. 119441, 321 U.S. 332. Rowever, in the Delta Steel Fabricating, supra, Chemical Development of Canada, supra, &s, the arbitrators there refused to enforce Private arrangements employees had negotiated to secure additional monetary benefits. In light of ss.35 and 59 of the Labour Relations Act, it is uncertain at best whether Mr. Fag&could validly seek to enforce such an agreement once he returned to the bargaining unit where the terms and conditions of employment ore required by the Act to be detemrtined by the regime of collective bargaining. Whether, in the appropriate circwnstances the union and the employer could effectively legitimate or sanction agreements entered into between the employer and individual employees as they may have tried to do in art. 5:05 is a question we need not answer. As we have indicated no evidence was preferred by the griever which w&d indicate the union has given its written approval to Mr. PagL's agreement. ore Maison'Mere des ~Soeurs~de'k~Ch&ite'D'Ottaua (19731 3 L.A.C. tZdl .393, 402-443 fBeattyl and see generally CanadianLabour'Arbitration Topic 2:1210. Moreover, and even if we were clothed with the necessary jurisdiction to consider the effect of the understanding that was reach by the grievor and her supervisor on July 16, we would, in 7. the circumstances of this case be attracted by the reasoning of the board of arbitration in 'Re 'Timken'Roller'Bearinq CO. Ltd. 119651 16 L.A.C. 228,234 f&z4 which, to counter the argument that once a decision is taken by a member of management it can not be countered by the higher echelons of management argued: There is no doubt that the mtin has obtained this idea fmm the reported cases on discipline where once a disciplinary decision has been made by mznagemsnt, no titer or altered decision can be imposed by higher Manngem&. We feel that this is quite a proper rule, but @at it is confined to the imposition of pemlty and that it does not extend to occupational decisions which do not involve the iqo&ition of a penalty. In our View, the decision that Mr. &l&n would be laid off, if it were in fact made by Mr. Warren, would always be subject to alteration up until the time of lay-off if higher management decidedthatitms amistake and that the mere decision by Mr. Warren could not under any cirmrmstances have been necessarily final and the company stuokw-ith that decision. We, therefore, have come to the concZusion that the action of the company involved here is not at all final or not at all indicative as to whether the situation revolving about Baldwinwas or was not a lay-off. In the result, the resolution of Mrs. Fournier's complaint falls to be determined on the terms set out in Article 10. On the express language-contained in that clause we have no hesitation in deciding that Mrs. Fournier was not entitled to bereavement leave-during the period she was on vacation. Very simply, during that latter period, it could not be said, as Article 10 requires, that Mrs. Fournier "would otherwise have been at work". To the contrary and by definition she could not be so described during the period she was absent and excused from work to enjoy her annual vacation. a. Putting the matter somewhat differently, this agreement does not, as some agreements do, describe an absolute right to bereavement leave upon the death of certain stipulated persons. Re Minnesota Mining &'knufactzi.&zg of 'CamzhLtd. (19721 24 L.A.C. 242 (Palmer). It is not a right or benefit available equally to all employees. Rather and in addition to establishing the fact of the death of one of the stipulated relations, this clause also raises the further explicit limitation that bereavement leave is only paid in those circumstances when, but for that leave, the employee would otherwise have been at work. That is to say and against that express limitation, in our view Article 10 clearly anticipates the granting of a period of paid bereavement leave ~_. only in those circumstances when, but for the leave provision, the employee would be required to suffer a lass in pay if she desired to remain off work to devote herself to those personal matters which are attendant upon the passing away of a close relation. Put simply, and against that express limitation, Article 10 in our view is only intended to protect employees against a loss of pay when they desire to be off work on the occasion of the death of a near relation. In the result and where, as here, the grievor was not at work, but rather was already on a paid vacation leave, the particular circumstances sought to be remedied by Article 10 were already satisfied. In short and when the grievor ~was on vacation leave there could be no loss in pay which Article 10 could remedy. In sum, and in the language of that Article, Mrs. Pournier could not, in the circumstances in which she found herself on July 16, be described as an "employee who would otherwise have been at work". Accordingly and for all of those reasons her grievance must be denied. Dated at Toronto this 6th of May 1977. D. M Beatty Chaihan I- I co- 7/ P M;?mb& Harris See Add& H. Simon Member ADDENDUM I agree with the findings on the main issue of the award regarding the interpretation of Article lo-of the collective agreement. I do not however, agree with the interpretation that an agreement made by a member of management whether written or otherwise may at a later date be cancelled by higher management. Particularly in this case were it concerns the cancelling of three days vacation leave and allows three days of bereavement leave with pay instead. The agreement does not stipulate when an employee must take his/her vacation. It was therefore no breach of the contract to allow the grievor to take her vacation at a later date. "Signed Harry Simon"