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HomeMy WebLinkAbout1983-0366.McDermid.87-08-05BETWEEN: IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD OPSEU (Campbell McDermid) - And - THE CROWN IN RIGHT OF ONTARIO (Ministry of Correctional Services) BEFORE: I. Springate G. Nabi E. Orsini Vice-Chairman Member Member .FOR THE GRIEVOR: S. Grant COUllSd Gowling and Henderson Barristers and Solicitors FOR THE EMPLOYER: L. McIntosh Counsel HEARING: April 6, 1987 Crown Law Office Civil Ministry of the Attorney General Griever Employer AWARD These proceedings relate to-the entitlement of an employee off work on workers' compensation to be paid for a holiday and/or to subsequently receive compensating paid leave. As detailed below, that issue was directly addressed, apparently for the first ,time, by a differently- constituted panel of the Board in Charbonneau 544/81 (Barton). Prior to Charbonneau, two other Board panels had considered the holiday entitlement of employees off work due to illness. In those cases, the Board concluded that an employee scheduled to work a holiday, but who did not actually do so on account of illness, was entitled.to be paid for the day at his regular rate, but not to receive any additional pay or compensating leave. In Charbonneau, however, the Board held that an employee on workers' compensation was entitled to be paid his regular salary for two holidays that he otherwise would have worked, as tie11 as either an additional 8 hours' pay for each of the days or compensating time off. The employer applied for judicial review of the Charbonneau award. Before the Divisional Court, the employer took a somewhat different position than it had before the Board concerning how the relevant provisions of the collec- tive agreement should be interpreted. The employer also relied on the fact that the Charbonneau award had not followed the reasoning adppted in certain of the Board's earlier awards. The Di~visional Court decl~ined to grant the application - 2 - for judicial review, reasoning that the award in Charbonneau was not patently unreasonable. On July 4, 1985, the Court endorsed the record as follows: 'We express no opinion on the correct- ness of the interpretation of articles 19 and 53 of the agreement given by the majority of the board of arbitration. We simply say that, in the light of what we were told was a different argument made before the Board, we see no necessity in this case, to resolve the apparent con- troversy among arbitrators. Despite an extremely persuasive argument by Ms. McIntosh on behalf of the employer, we are not convinced that the interpretation found in the majority award is patently unreasonable. The holiday pay entitlement of eight employees on workers' compensation came before the Board in Walberg et & 259/84 (Delisle). At a.hearing held on September 10~, 1986, the Board declined to hear argument from the employer as to why the decision in Charbonneau should not be followed, reasoning that it would be inappropriate to do so given the holding of the Divisional Court in Charbonneau. On January 15, 1987, the Board issued an award in which it found, ' . ..for the reasons given in the earlier decision in Charbonneau..." that the eight grievances should be allowed. On or about February 26, 1987, the employer filed an application for judicial review of the award in Walberg. Although we were not presented with a copy of the application, we gather from counsels' submissions that the basis of the application was the refusal of the Board to entertain the -3- employer's argument as to why the award in Charbonneau should not be followed. At the commencement of the hearing in the instant proceedings, counsel for the employer proposed that the hearing be adjourned pending the outcome of the judicial review proceedings in Walberg. Counsel for the union objected to any adjournment, noting that the judicial review proceedings in question concerned only the procedure followed by the Board in that case. Union counsel indicated a desire to have the hearing proceed, but contended that the principle of issue estoppel prevented the employer from successfully arguing that the reasoning of the Board in Charbonneau should not be followed. Following a brief recess, the Board ruled orally that it would not adjourn the hearing to await the outcome of the 'judicial review proceedings.in Walberg. The Board also ruled that it would hear the merits of the instant grievance. Given the nature of the issues involved in the judicial review of Walberg, it was our opinion that no useful purpose was likely to be served by waiting for the outcome of those proceedings. It was also our view that this is not a case in which the principle of issue estoppel applies SO as to dictate a particular result. The parties are in agreement as to the facts relevant to the grievance before us. The qrievor, I - 4 - Mr. Campbell McDermid, is a steam plant engineer at the Rideau Correctional Centre. He was off work on workers' compensation from March 14 to April 19, 1983. During this period there were two holidays which he had been scheduled to work. The employer paid him his regular rate for both days; According to counsel for the employer, the grievor was treated for pay purposes as if he had taken the two holidays in question. On this approach, the grievor was not entitled to compensating leave for the two days, or additional pay in lieu thereof. In his grievance, the grievor characterized the employer's approach as involving an "unfair removal of stat days under set 53.2 of the collective agreement". By way of a rem$dy, he requested "reinstatement" of the two days in question. The various provisions of the collective agree- ment in force at the relevant time which may be relevant to these proceedings are set out below. ARTICLE 19 - HOLIDAY PAYMENT 19.1 Where an employee works on a holiday included under Article 47 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7&l, eight (8), or the number of re,gularly scheduled hours, as applicable. 19.2 In addition to the payment provided by section 19.1 an employee shall receive either seven and one-quarter -5- (7-k) or eight (81 hours as appli- cable at his basic hourly rate or compensating leave of seven and one-quarter (7-&l or eight (81 hours as applicable, provided the employee opts for compensating leave prior to the holiday. ARTICLE 21 - NON-PYRAMIDING OF PREMIUM PAYMENTS 21.1 There shall be no duplication or pyramiding of any premium payments or compensating leave provided by this Agreement. ARTICLE 47 - HOLIDAYS .47.1 An employee shall be entitled to the following holidays each year: New Year's Day Good Friday, Easter Monday Victoria Day Dominion Day Civic Holiday Labour Day Thanksgiving Day Remembrance Day Christmas Day Boxing Day Any special holiday as proclaimed by the Governor-General or Lieutenant Governor. ARTICLE 51 - SHORT TERM SICKNESS PLAN 51.1 An employee who is unable to attend to his duties due to sickness or injury is entitled to leave-of- absence with pay a (i) with regular first six (6 of absence. (ii) with seventy follows: salary for the working days five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence. in each calendar year. - 6 - \ 53.2 Where an employee is absent by reason of an injury or an industrial disease for which an award is made under The Workmen's Compensation Act, his salary shall continue tobe paid for a period not exceeding three (3) consecutive months for a total of sixty-five (65) working days where such absences are intermittent,.following the date of the first absence because of the injury or industrial disease, and any absence in respect of the injury or industrial disease shall not be charged against his credits. Article 19.1 provides that an employee who works a holiday shall be paid at two times his basic.hourly rate; At the time a number of the Board cases cited below were decided, the article provided for payment at a somewhat lesser rate, namely at time and a half. Apart from this change, the language of the article remains basically the same. The first Board case relied on by the employer was Cooper 145/77 (Swan). In that case, an employee scheduled to work a statutory holiday reported for work, but two and three-quarter hours into his shift became ill and left. The employer paid him one and a half times his regular salary for the two and three-quarter hours wor~ked pursuant to Article 19.1 plus eight hours' holiday pay under Article 19.2. The employee claimed an entitl.ement to a full eight hours at one and a half times his regular salary under Article 19.1. The Board disagreed, reasoning that Article ., - 7 - 19.1 applies only if an employee is'actually available to work. In this regard, the Board reasoned as follows: Nevertheless, we are of the view that the guaranteed credit in clause 19.1 must be understood to be subject 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 subsequent case of Parsons 31/78 (Prichard), an employee who worked a holiday did not take a compensating day off. The employer paid him for eight hours at time and a half pursuant to the provisions of Article 19.1, as well as eight hours' pay under Article 19.2. The employee claimed yet an additional eight hours' pay under what was then Article 9. The corresponding provision in the agreement before us is Article 47.1. This is the provision which under the heading "An employee shall be entitled to the following holidays each year", lists the various holidays that employees are entitled to receive. For ease of reference we will henceforth refer to the -a- article as Article 47.1. The contention of the union in Parsons was that Article 47.1 creates a general entitlement to be paid for a holiday whether it is worked or not, and Articles 19.1 and 19.2 set out the additional amounts that an employee who works a holiday is entitled to receive. The Board disagreed, concluding that Article 19.2 sets out the amount payable to all employees for a holiday, whether worked or not, while Article 19.1 sets out the additional amount payable to employees who actually work a holiday. The reasoning of the Board was as follows: Our reading of Article 19 is that it stands apart from and independent, of Article (47.1). On this interpretation, the functions of Articles 19.1 and 19.2 are to set out the entitlement of an individual who is required to work on a statutory holiday. On this reading, Article 19.1 provides for the usual over- time rates and Article.19.2 provides for an additional bonus of eight hours' pay for being required to work on a statutory holiday. In effect, then, this reading sees Articles 19.1 and 19.2 providing for pay at the rates of 2-4 times the hours worked while the entitlement to eight hours' pay pursuant to Article (47.1) remains unaffected. This, of course, is the grievor's position. It is rendered plausible by the wording of Articles 19.1 and 19.2. The opening words of 19.2, "in addition to the payment provided by Section 19.1", clearly link the two pro- visions leading to the conclusion that Article 19.2, like Article 19.1, is con- cerned exclusively with the payment of persons who are required to work on statutory holidays. If Article.19.2 is limited to this function, then it is an easy step to conclude that the total entitlement of 20 hours pursuant to Article - 9 - 19.1 and 19.2 for working on a statutory holiday should be added to the basic entitlement to 8 hours' pay pursuant to Article (47.1) of all employees in the bargaining unit. Despite the plausibility of this interpretation, we are forced by the language of the relevant articles and the presumed intent and expectations of the parties to reject it. We read Article 19.2 as having a more expansive function than that which the grievor accords it. We accept the Ministry's argument that Article 19.2 should be read as providing that all employees, whether or not they are required to work on a statutory holiday, are entitled to eight hours' pay for that day. In a sense, then, this merely confirms the entitlement to pay for statutory holi- days that we would likely, if required, have inferred from Article (47.1). Read in this light, the introductory words of Article 19.2, "in addition to the payment provided by Section 19.1", are not a limitation on the scope of the application of Article 19.2 but rather a confirmation that any entitlement earned under Article 19.1 is in addition to and not in lieu of the Article 19.2 entitlement. The proper interpretation of Article 19 was again considered in Martin 34/81 (Delisle). In that case an employee who was scheduled to work a holiday suffered a heart attack and accordingly was unable to do so. Pursuant to the provisions of Article 51.1, the employee was entitled to a leave of absence ".. .with regular salary for the first six working days of absence". The employer paid the employee eight hours' holiday pay, apparently on the understanding that the payment was required by Article 19.2. The employee claimed an additional eight hours' pay at one and a half - 10 - times his regular rate under Article 19.1. A majority of the Board panel disagreed with this claim. Relying in part on the reasoning in Cooper, the majority concluded that Article 19.1 is triggered by the actual performance of work, and since the employee had not worked on the day in question, Article 19.1 did not apply. As an alternative basis for dismissing the grievance, the majority concluded that the employee's claim ran counter to the prohibition in Article 21.X against pyramiding premium payments or compensating leave. The basis for this conclusion was not set out in the award. Board Member L. Robinson disagreed with the majority award. It was his view that Cooper had been wrongly decided. He was also of the view that the applicable collective agreement provision was not Article 19.1, but Article 51.1. He read the reference to Article 51.1 to an employee's entitlement to his "regular- salary", as meaning the eight hours' pay at two and a half times his.regular rate the employee would have received had he worked the holiday. Mr. Robinson also concluded that the prohibition against pyramiding in Article 21 was not applicable. The next relevant case in time was Charbonneau. As noted above, in that case an employee scheduled to work two holidays did not do so on account of his being off work on workers' compensation. He was paid only eight hours' pay - 11 - for both days, and did not receive any compensating leave. A majority of the panel in that case agreed with Mr. Robinson's conclusion in Martin that the prohibition against pyramiding in Article 21 was not applicable to the issue in question. The majority did not, however, accept Mr. Robinson's reasoning that an employee unable to work is entitled to receive the same salary he would have received had he actually worked a scheduled holiday. Rather, it concluded that Article 53 entitled the employee to his regular salary, while Article 19.2 entitled him to an additional eight hours' pay or a lieu day off. It did not regard Article 19.1 as having any application since the employee did not actually work on .the holiday. The final paragraph in the majority award reads as follows: On balance although the matter is not totally clear, the resolution of the problem is as follows: 1. Article 21 does not apply. 2. Article 19.1 does not apply because the Grievor did not work on the day in question. 3. The Grievor is entitled to his regular salary under Article 53. 4. 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 stand- ing apart from.Article 19.1, I would not have so found. - 12 - 5. 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. Board Member Middleton, who formed part of the majority in Martin, was on the panel that decided Charbonneau. He dissented from the majority award in Charbonneau. While approving of the reasoning in Cooper, Mr. Middleton was of the view that the ~award in Parsons had erred in holding that Article 19.2 applies to employees who do not work a holiday. In Mr. Middleton's view, the entitlement of employees who do not work a holiday must be found elsewhere in the agreement - namely in Article 53 in the case of an employee on workers' compensation. Mr. Middleton read Article 53 as entitling an employee on compensation to his regular pay for a holiday, and nothing more. In addition, Mr. Middleton was of the view that the prohibition against pyramiding in Article 21 ensured that if compensating leave were to be given, it would have to be without pay. The cases referred to above suggest four possible approaches to the grievance before us. They are set out below in summary form. 1. Article 53.2 creates an entitlement to payment for the two holidays the grievor did not work, but reference must be had to Article 19 to . - 13 - determine the amount of payment. Because the grievor did not work on the days in question, Article 19.1 has no application. Article 19.2, however, applies both to employees who work and those who do not work a holiday, and accordingly is applicable. Pursuant to Article 19.2, the grievor is entitled payment for both days at straight time or compensating time off. This approach is consistent with the reasoning in Parsons and the majority award .in Martin. 2. Article 53.2 entitles'the grievor to his regular salary for the two days in question. The amount of payment is to be determined by reference to Article 19. Unlike the previous approach, how- ever, it is to be calculated on the basis of - what the grievor would have received had he actually worked the days in question. Had he worked the two holidays, he would have been entitled to eight hours' pay at double time under Article 19.1, as well as an additional eight hours' pay under Article 19.2, or compen- sating leave with pay. This was the approach adopted by Mr. Robinson in his dissent in Martin. 3. The grievor's entitlement to payment flows onl~y from Article 53.2. Neither Article 19.1 nor . - 14 - Article 19.2 have any application. Under Article 53.2, an employee is entitled to be paid for the holiday on the same basis as if he had actually taken the holiday on the day it occurred. This was the approach adopted by Mr. Middleton in his dissent in Charbonneau. 4. The grievor is entitled to his regular salary under Article 53.2. He is also entitled to eight hours' pay or compensating leave under Article 19.2. In that Article 19.1 applies only to an employee who works a holiday, it has no applica- tion. This was the reasoning adopted by the majority in Charbonneau. Given the lack of clarity in the language of the collective agreement, none of the four approaches set out above appears unreasonable. The same is true with respect to the issue of whether the prohibition in. Article 21 against pyramiding premium payments or compensating leave is applicable. While the payment of holiday pay or granting of compensating leave to an employee on workers' compensation might be viewed as a form of pyramiding, it would be equally reasonable to view the provisions of the collective agreement governing holiday pay and the payment of wages to an injured employee as independent of each . - 15 - other, such that an employee might be entitled to both. This latter approach finds support in the arbitral juris- prudence which has held that if an employee can bring himself within the terms of a collective agreement for both benefits, he is entitled to receive both sick pay and holiday pay. See : Re American Can of Canada Ltd. and International Association of Machinists and Aerospace Workers, Local Lodge 1909 (19801, 26 L.A.C. (2d) 189 (M. Picher), and Re North York General Hospital and Ontario Nurses Association (19801, 27.~.A.c. (2d) 64 (Shime). The difficulty we face is deciding which line of reasoning to follow. As already indicated, given the language of the collective agreement, we do not view any of the possible approaches set out above as unreasonable. In addition, we cannot accept the employer's contention that the majority award in Charbonneau was manifestly wrong. While the reasoning adopted by the majority in that case did not follow the reasoning in previous Board cases dealing with employees off work due to illness, that by itself is not a sufficient basis to conclude that it was manifestly wrong. Indeed, given the lack of clarity in the collective agreement, we do not view any of the possible approaches set out above as being manifestly wrong. This is one of those cases where arbitrators could give the same agreement language different, yet reasonable, interpretations. We - 16 - are of the view, however, that where reasonably possible the Board should strive for consistency when dealing with a particular issue. To do otherwise would mean that the outcome of any particular girevance on an issue might depend on the composition of the Board panel assi~gned to hear the case. In Charbonneau, the Board dealt with the very issue now before us, namely the holiday entitlement of an employee scheduled to work a holiday but unable to do so because of a compensable injury. The majority award in Charbonneau was judicially reviewed.by the Divisional Court, which declined to quash it. In the interests of a uniform approach to the issue, we propose to apply the reasoning in the majority in Charbonneau to the grievance before us. In doing so, we express no opinion as to whether the reasoning in Charbonneau should be applied to kmployees who are off work due to a non-compensable illness. In line with the reasoning of the majority in Charbonneau, Article 53.2 entitled the grievor to be paid his regular salary for the two holidays in question. He was also entitled to an additional eight hours' pay for each day or compensating leave under Article 19.2. The griever was only paid for eight hours at straight time. He is entitled to receive the difference. We will remain seized of this matter in the event that the parties'ar? unable to agree - 17 - upon the actual monetary compensation and/or compensating leave owing to the grievor. DATED at Mississauga, this 5th day of August, 1987. /Mk azrr I.C. Springate - Vice-Chairman G. Nabi Member ti E. Orsini Member