HomeMy WebLinkAbout1981-0544.Charbonneau.82-11-29IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearing:
OPSEU (E. Charbonneau)
Grievor
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The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
P. G. Barton Vice Chairman
T. Traves Member
D. B. Middleton Member
R. Nabi
Grievance/Classification Officer
Ontario Public Service Employees Union
J. F. Benedict
Manager, Staff Relations
Personnel Branch
Ministry of Correctional Services
June 22, 1982
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AWARD
On August 1, 1981 the Grievor who is a CO 2 in the
Ministry of Corrections, Mimic0 Correctional Centre, filed a
grievance alleging "that while on W.C.B, 2 lieu days April 17,
1981, Good Friday and April 20; 1981 Easter Monday were taken
away from me as days in lieu." The relief sought was that
the lieu days be granted "not as monetary compensation."
The decision on the matter was facilitated by an
agreed statement of fact,which reads as follows:
1. The qrievor is employed at the Mimic0 Correctional
Centre as a Correctional Officer 2 and has been
employed with the Ministry since September 16, 1974
and is an employee within the meaning of the collective
agreement.
2. The grievor was injured while at work on April 7. 1981.
3. As a result the grievor was off work and received
Workmen's Compensation in accordance with Article 53.1
of the Collective Agreement from April 8 to April 26,
1981, inclusive.
4. April 8, 1981, was the first day of an award made under
The Workmen's Compensation Act Board in 1981.
5. Had the qrievor actually worked from April 8 to April
26, 1981, inclusive, his regular working days and
regular days off would have been as follows:
April 8 - regular working day
9 - regular day off
10 - regular day off
11 - regular working day
12 - regular working day 13 - regular working day
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14 - regular working day
15 - regular working day
16 - regular working day
17 - regular working day - Good Friday
18 - regular day off
19 - regular day off
20 - regular working day - Easter Monday
21 - regular working day
22 - regular day off
23 - regular day off
24 - regular working day
25 - regular working day
26 - regular working day
6. The employer has treated the grievor as if he
received both holidays by allocating 8 hr. pay for
each day to the qrievor.
7. The grievor signed a document three weeks - 1 mon.
prior to the holidays in question indicating to
the employer that he wanted the time off instead of
cash.
8. Schedule is 5 days/wk., 8 hrs. (Sched 4.7)
As can be seen from the Statement of Fact the Griever
was originally scheduled to work Good Friday and Easter Monday.
Just over a week before Good Friday he went on a Workmen's
Compensation award and did not work on Good Friday or Easter
Monday but did receive eight hours for each of those two days.
The reason why he was treated in this way is because of a policy
of the Ministry which reads as follows:
"If a statutory holiday falls within the first
three months of a W.C.B. award, the employee
will be deemed to have taken the holiday on the day it occurred and he will not receive
a lieu day."
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The relevant provisions of the agreement are aS follows:
I'~ 19.1 Where an employee works on a holiday included
under Article 47. Holidays. he shall be paid at the
rateof timeand one-half(l.112) for all hours work.
ed with a minimum credit of seven and one.
quarter (7-114) or eight (9) hours. as applicable.
19.2 In addition to the payment provided by section
19.1, an employee shall receive either seven and
one-quarter (7.114) or eight (8) hours pay as ap-
plicable at his basic hourly rate or compensating
leave Of seven and one-quarter (7.1/4) or eight (t3)
hours as applicable, provided the employee opts
for compensating leave prior to the holiday.
21.1 Thereshall benoduplicationorpyramidingof any
premium payments or compensating leave pro-
vided by this Agreement.
53.2 Where an employee is absent by reason of an in.
hJVCXan industrialdiseasefdrwhichanaward is
made under The Workmen’s Compensation Act,
his Salary shall continue to be paid for a period
not exceeding three (3) consecutive months or a
total of sixtvfive (65) working days where such
absence are intermittent. following thedateof
the first absence because of the injury or indus.
trialdisease, andanyabsencein respectofthein.
IurY Or industrial disease shall not be charged
against his credits.”
On April 8 the Grievor started receiving a W.C.B. award,
By virtue of Article 53.2 he was entitled to his "salary" for
up to three months. In addition he would not be using up any
of his sick leave credits for that period.
The argument of the Grievor is that holidays are earned
benefits. By virtue of Article 47 it is indicated that the
employee shall be entitled to "a certain number of holidays."
It is argued that in this situation the Grievor is entitled to
the W.C.B. benefits under Article 53.2 and pay under Article 18.2
or lieu day. In this case he indicated in advance of the holiday that
he wished a lieu day and his request is for those two days. It
is argued in addition, that Article 21 does not apply because
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-there is no pyramiding of premium payments or compensating leave.
The position Of the Employer is that Article 19.1 and
19.2 must be read together. Clearly the Grievor is entitled to
payment under Article 19.1 only if he works on the scheduled
holiday. It is argued that the language of Article 19.2 which
says: "in addition" indicates that payments under 19.2 are only
made if an employee works on a scheduled holiday,
As a general principle it is clear that if an employee
can fit himself under the terms of a Collective Agreement in
such a way that he seems to be entitled to two benefits for the
same date, he is entitled to those. Thus there are cases in the
'its.
private sector and indeed in the public sector where because of
the language of various agreements employees who are sick on
statutory holidays have obtained both holiday pay and sick benef
The matter has been dealt with tangentially in the Grievance
Settlement Board in a number of cases. In the case of Cooper
145/77 (X. Swan) the Grievor had been scheduled to work on a
statutory holiday. Be came into work and worked 2 and 3/4 hours
but became sick. He was paid 1 and l/2 times his regular salary
for the hours that he actually worked plus he was paid 8 hour
holiday pay(apparently under Article 19.2) He sought additional
5 and l/4 hours of time at time and one half for the balance
of the day that he was unable to work but was unsuccessful. The
Board made a distinction between the situation in which work was
no longer available,in which case he would apparently be entitled
to the money and one in which he was unavailable for work because
of sickness (although without fault). In the latter case the
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Board indicated that he did not get the additional pay. Although
the distinction made by the Vice-Chairman does not seem to be
a particularly satisfactory one, the Award seems to stand for the
proposition that 8 hours pay falls under Article 19.2 as holiday
pay, i.e., it is the source of holiday pay, and that payment
under Article 19.1 is only for hours worked unless the employee
is unable to work because he or she is sent home by the employer.
A second case similar to this was the case of Parsons
81/78.In this case the Grievor worked on a statutory holiday and
asked to be entitled to 8 hours pay under Article 9 the holiday
provision, 8 hours at time and one half under Article 19.1, and
8 hours or a lieu day under Article 19.2. The Board under R.
Pritchard, Vice-Chairman, declined to find the holiday article
Article 9 (the equivalent to Article 47 in our agreement) as
a.source of holiday pay. Thus the Grievor was only entitled to
the payments under Article 19.1 and 19.2. In so doing, however,
the Board indicated that "we wish to say at the outset that the
language of the two relevant articles is not entirely satisfactory".
It also accepted a Ministry argument that Article 19.2 applies to
all employees and not just to those who are required to work on a
statutory holiday. Thus the Board saw Article 19.2 as a source of
holiday pay for all employees. It indicated "the better interpretation
of Article 19 is that it is a relatively comprehensive code of
entitlement to holiday pay dealing with both persons who are
required to work and those not required to work on statutory
holidays."
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The third relevant case is that of Martin 43.4/81 (Delisle).
In this case the grievor was scheduled to work on a holiday but had
a heart attack. He was paid.for 8 hours but claimed an additional
8 hours at time and one half under Article 19.1. He argued that
the sick leave provision Article 51 entitled him to "regular
salary" for the first 6 working days of absence, and 75% of
"regular salary" for an additional period. He argued that regular
salary meant what he would regularly -have-been earning and
that included holiday pay since he had been scheduled to work on
the holiday and was prevented from doing so because of his sickness.
The Board rejected this argument and indicated that a person is
only entitled to payment under Article 19.1 if he actually works
on the holiday. The Board again, did see Article 19.2 as the
source of his 8 hours payment.
In a strong dissent, L. Robinson indicated first that
the provisions of Article 21 dealing with nonpyramiding do not
apply to this situation. I agree with that position. He also
indicated that the distinction between being sick (or on W.C.B.)
and unavailable and where the employer has no work is unsatisfactory.
I must say that on principle I agree with this statement as well.
In both cases the reason why the employee although scheduled to
work is not able to do so is something beyond the employee's control.
He also indicated that"regular salary"within the meaning
of Article 51 means a salary that he would normally earn on the
relevant day. If scheduled to work on that day he would normally
earn the full amount. This proposition was supported by principle
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and by the case of Re North York General 27 L.A.C. (2d) 64 (Shime).
In that case the employee was entitled to regular "income" and
when the employee became sick although scheduled to work on a
holiday, both sick pay and holiday pay were paid. Although it
might be possible to distinguish this case from the case at bar
on the basis that in North York General income was concerned and
here salary is involved, I am not so sure that is a distinction
with a difference. It is seems to me that the concept of holiday
pay or pay when a holiday occurs even though the employee does
not work on that day is a concept of continuing the employee's
sa~lary for the day in question to give the employee some guarantee
On balance although the matter is not totally clear, the
resolution of the problem is as follows:
1.
2.
3.
4.
5.
Article 21 does not apply.
Article 19.1 does not apply because the Grievor
did not work on the day in question.
The Grievor is entitled to his regular salary
under Article 53.
The Grievor is entitled to 8 hours pay or a lieu
day under 19.2. I might add that were it not that
Vice-Chairman Pritchard and Delisle seem to accept
Article 19.2 as standing apart from Article 19.1, I
would not have so.found.
Because the Grievor indicated in advance that he
wished the lieu days,he is entitled to those days
and the grievance is alldwed, the Employer being
directed to grant him those days.
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DATED AT London, Ontario
this 29th day of November, 1982
P. G. Barton, Vice Chairman
"I dissent" (see attached)
D. B. Middieton, Member
a:1000 etc.
Re (O.P.S.E.U.) E. Charbonneau (544/81)
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Ministry of Correctional Services
DISSENT
The majority award in the above matter is bound to be con-
troversial since it creates special privileges contrary
to established ministerial policy for a relatively minor
group of employees, namely W.C.B. award recipients, by
granting the grievor, E. Charbonneau, doubled-up benefits for
the same holiday dates--Good Friday, April 17 and Easter
Monday, April 20, 1981--namely his regular salary on a W.C.B.
award make-up basis under section 53.2 and, additionally, a
lieu day to be taken arising from his eligibility under
section 19.2--Holiday Payment.
My colleagues on this board in so ruling concluded that the
grievor, from .a benefit point of view,~ came squarely and
separately within the qualifying orbit of both these above-
mentioned sections of the contract.
To come to this finding, the majority board construed article 19
so that sections 19.1 and 19.2 had a distinct and separate
life and purpose and little if anything in common.
The other essential component under the meagre arbitral ,.
support found for this proposition in Brown and Beatty,
page 450, is that the contract has no clear contradictory
language to prevent the accrual of these dual benefits for
the same days.
Faced with this, my colleagues very simply state that article
21--Non-Pyramiding of Premium Payments--does not apply
which explicitly forbids duplication or pyramiding of com- pensated leave benefits.
There is no direct G.S.B. support to my knowledge for the
finding of the majority board or the overall supportive
reasoning for it, and my reading of cases Cooper, 145/77,
Parsons, al/78 and more recently Martin, 434/81 establish,
if anything, a contrary trend and in the Martin case what
may well be in result an antithetic position.
Although the separation in construing article 19 of sections 19.1 and 19.2 has to be and is the cornerstone of the
majority award which construction originated with the Parsons, al/78 award (Prichard), it is endorsed in the text of this Charbonneau award without conviction by my colleagues.
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How else can Item 4 of page 7 of the majority award be read
as follows:
The grievor is entitled to 8 hours pay or a lieu day under
19.2. I .might add that were it not that Vice-Chairman
Prichard and Delisle seem to accept article 19.2 as
standing apart from 19.1, I would not have so found.
This member cannot escape the conclusion that the governing
respect accorded the interpretative capacity of the Parsons
al/78 board wherein sections 19.1 and 19.2 was concerned by
the majority of this board is entirely undeserved and mis-
placed; and, that the Parsons finding in result bent the
language of these two sections 19.1 and 19.2 away from their
negotiated intent,sequence and plain meaning, and, now
is the time and occasion for this board to say so in
unequivocal terms.
In the award'Mr. K. Cooper 145/77, Professor K. P. Swan
came verv near to the heart of this dissentins opinion
when in interpreting article 19.1 of the contract under
review involving an employee who worked part of a holiday,
the majority of that board found as quoted below (top of page 5):
We, therefore, turn to the language of the Collective
Agreement. Clause 19.1, we observe, is not triggered
by the scheduling of work but by the performance of work,
since the 8 hours guarantee operates, where an employee
works on a holiday.
Further on in the same award, the majority board found in
closing (page 7) :
Nevertheless, we are of the view that the guaranteed
credit in clause 19.1 must be understood to be sub\ject
to the employee's continuing availability for work.
Once the employee is found not to be capable of working,
he is to be treated as provided for elsewhere in the
collective agreement. In the case of illness on a
holiday, an employee under this agreement simply
receives holiday pay, and that is how Mr. Cooper was
treated once he left work. An inability to work is
different from a lack of work to be done, and ought to be treated differently in interpreting guarantee clauses.
The purpose of such clauses, to deter unnecessary scheduling
or requiring of work on statutory holidays, is still
preserved even if one requires an employee to be capable of working in order to benefit from the guarantee. In the result, the grievance is dismissed..
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This member cannot conserve intellectual honesty and con-
join with those arbitrators who have construed section 19.1
as being separate from 19.2.
It would appear that the sequential word flow of 19.1 and 19.2
preceded in 19.2, by the conjunctive phrase 'in addition to',
clearly establishes that the negotiating parties intended
that they should be read together.
Taken as a whole, we must conclude that the two sections
19.1 and 19.2 deal only with the separate pay ingredients to which an employee is entitled who actually works on a
holiday.
Such an employee is entitled to a maximum pay for each hour
worked of 1% times under 19.1 and in addition straight time
under the first part of 19.2 for his regular schedule of
hours (2% times in total) if he does not opt for compensating
leave under the .latter part of 19.2.
The latter part of 19.2 is not clear whether the opting
employee obtains leave with pay in lieu of the holiday or whether the granting of the lieu day is compensating leave
by that very fact.
We will return to this question later when it becomes nec-
essary under the circumstances of this case to review whether
article 21 has or has not a critical impact on the validity
or lack of it of the majority awards executive findings (see
page 7. l-5 of that award).
We are forced to conclude that both sections 19.1 and 19.2
are triggered by performance of work on and not scheduling
of any named holiday under article 47.
It follows that once an employee is on compensating leave for
illness or injury --occupational or not--and, as a r~esult,
cannot perform.his scheduled hours of work on a.holiday then both the reason and eligibility for opted compensating
leave becomes null and void, and any pay entitlement for that day evolves in this case to article 53, Workmen's Com-
pensation,and under the provisions of that article alone.
The same or very similar conclusion although on different
grounds was reached in Cooper 145/77 by Professor Swan
where an employee worked a partial shift on a holiday
and went off ill; and, separately but later in Martin, 434/81
(Prof. Delisle) where an employee was scheduled to work a
holiday but prevented by a heart attack from working any part of his holiday shift.
We have quoted the relevant part of the Cooper award al-
ready in this dissent but in Martin is found the following
section on page 4
An employee under this agreement simply received holiday
pay, etc.
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It is an essential ingredient of my disagreement with the
majority board that the qrievor knew quite well that the pay
or lieu day option set out in 19.2 only applied when work
was scheduled for him on the holidays concerned, and at the
time of opting for compensating leave nothing such as ill-
ness or injury stood in the way of work on the days in
question.
I am equally certain that the employer granted the lieu
days option to Mr. Charbonneau anitcipating that the
grievor would be able to carry out his work stint as
scheduled, and certainly would not have done so with know-
ledge that an occup-ational injury would inevitably pre-
vent this work contract being carried out.
Iten 7 of the "Agreed upon Statement of Fact" on page 2 of the majority award confirms that the grievor exer-
cised his option in writing requesting lieu days for
the holidays in question under 19.2 instead of cash
(emphasis added) three weeks--l month--prior to the holidays themselves, which underscores and, to my mind, firms
up my stated convictions as to the understanding of the
situation by the grievor.
Put baldly, this member of the board is convinced that
Mr. Charbonneau,?would have considered a request for
lieu days under 19.2 entirely inappropriate once his in-
jury had occurred on or about April 8th, and, more im-
portantly not a matter of contractual right once he realized he was not able to work his scheduled shifts on
the holidays in question.
It is surely germane to our deliberations as a board of
arbitration that those arbitrators starting with Parsons
El/78 who have separated 19.2 from 19.1 and found thereby a general pay holiday entitlement section in 19.2 covering
all employees have, to my mind, only managed to enhance the fact that article 47r,Holidays, which is the natural
setting,lacks any such plain statement and thereby sub-
stituted an implication in section 19.2 for the reality.
The extension by the majority board in this case of
lieu day privileges to W.C.B. award recipients in addition
to their regular salary under the terms of article 53
for the two holidays in question should undoubtedly have more contractual support in plain language than the
dubious support for the proposition by implication out
of the terms of 19.2 which is essential to the executive
result of that board found on page 7 (l-5) of its finding.
The conclusion on the other hand of this dissenting member
that links 19.1 and 19.2 to performance of work on a
holiday as outlined above leads to the inevitable failure of this grievance and should help to erase the apparent lack of compatibility between the majority award in this case
and the Martin award-where the applioation of article 21 is concerned.
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Contrary to the stated finding of my colleagues this member
would conclude that article 21 'does apply' to this griev-
ance if in fact the majority board intended to award lieu
days to the qrievor 'with pay' which is not at all clear in
the text. Section 5 on page 7 of the majority award reads as follows:
Because the Grievor indicated in advance that he wished
the lieu days, he is entitled to those days and the
grievance is allowed, the Employer being directed
to grant him those days.
It is clear from the above that the majority have granted the grievor compensating leave or opted lieu days for Good
Friday and Easter Monday 1981 by nature of their inter-
pretation of the application of 19.2 as separate from 19.1.
The actual words used are 'compensating leave' and not
'lieu days' which has gained acceptance by repetition but has
no authority in the text of 19.2.
In addition, Mr. G. Charbonneau has already been paid W.C.B.
award monies and make-up to his regular salary from his employer,
The Ministry of Correctional Services, for the same two
holidays under the terms of article 53 while on leave-of-absence.
If the same phrase 'compensating leave' found in 19.2 and
article 21 is to be interpreted as a lieu day when opted
'with pay' and not just time off instead of the pay called for in the first part of 19.2 then doubling up of payment is
involved for the same day or days in this case.
In that result this board member has no doubt that this
pyramiding of pay is exactly what the parties to the con-
tract set out to prevent when article 21 was agreed to.
On the other hand, if the lieu days granted under 19.2
by the majority award to the grievor, whether correctly
or not, do not carry any payment but are time off 'without pay' ~tiheh~~this~.member,~would agree!!iwith..the majorityc~of the board that
article 21 does not apply because doubling up of payment for the same day or days under 19.2 and article 53 will not
occur.
In my reading, the executive direction given by the majority board in section 5, page 7 (quoted above in full) does not
grant payment for the lieu days granted,and I must conclude
that this is purposeful.
Certainly according to the first paragraph page 1 of the majority award such an outcome is that sought by the
grievor which reads to the point in question as follows:
On August 1, 1981 the Grievor who is a CO 2 in the Ministry of Corrections, Mimic0 Correctional Centre,
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filed a grievance alleging "that while on W.C.B., 2 lieu days April 17, 1981, Good Friday and April 20,
1981,Easter Monday,,were taken away from me as days
in lieu." The relief sought was that the lieu days be granted not as monetary compensation.
In conclusion,the nub of this minority award is our
confidence that the majority of this board erred in
separating article 19.1 from 19.2 and thus gained authority to bring benefit entitlement to the qrievors
under two separate parts of the contract, namely article
19.2 and 53 for the same day or days--Good Friday,
April 17th and Easter Monday, April 20th.
We would read 19.1 and 19.2 together and conclude that the
options sought and granted, previous to the qrievor being
prevented from working the above holidays by occupational
'injury become null and void when this occurred.
Pay entitlement is then transferred solely to article 53
in this instance in accord with the Ministry policy
in effect which is set out in the majority award as follows:
If a statutory holiday falls within the first
three months of a W.C.B. award, the employee
will be deemed to have taken the holiday on the
day it occurred and he will.not receive a lieu day.
Furthermore, if this member has misread the direction of
the majority in section 5, page 7 of their award, and
their intent, though not so expressed, was to grant lieu
days to the grievor'with pav'in addition to his already paid entitlement under article 53, then again such a finding
ignores and is contrary to the terms of article 21.
In either event, this member remains convinced that the
majority board finding is in error in this particular
situation and would have dismissed the grievance.
t.::. /j ,,T,~', ; .d-[& &-
D. B. MIDDLETON
MEMBER