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HomeMy WebLinkAbout1983-0418.Sekhon.90-03-15ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARI0 GRIEVANCE COMMlSSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G lZ8 - SUITE 2100 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G lZ8 - BUREAU 2100 TELEPHONE/TELEPHONE 418/83 (416) 598-0688 IN 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: OPSEU (Jagjit Sekhon) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer Vice-Chairperson Member Member M.K. Saltman L. Robbins A. Merritt I. Roland Counsel Gowling, Strathy & Henderson Barristers & Solicitors L. McIntosh Counsel Crown Law Office - Civil Ministry of the Attorney General HEARING: October 27, 1989 Written Submissions were completed on November 16, 1989 1 INTERIM DECISION In this grievance, the Grievor, Jagjit Sekhon, protests the termination of long-term income protection benefits. This grievance was originally heard by another panel of the Board (chaired by Vice-chairman Jolliffe), which issued a decision dated August 24, 1984. That decision was quashed on judicial review and remitted to another panel with the result that the present panel became seised of the matter. The facts which are relevant to a determination of this grievance are as follows: 1. 2. The Grievor was employed with the Ministry of Health as a Data Entry Operator. As an employee, she was entitled to certain insured benefits under the collective agreement, including long-term income protection benefits. During the currency of the 1980-81 collective agreement, the Grievor became disabled and, therefore, eligible for long-term income protection benefits. 3. 4. 5. Subsequently, benefits were 2 the Grievor's long-term income protection terminated by the insurer effective January 31, 1982 because, in the opinion of the insurer, “the medical evidence does not support her claim of total disability”. The disqualification took place during the currency of the 1982-83 collective agreement. On April 15, 1983, the Grievor filed a grievance against the denial of long-term income protection benefits. That grievance was referred to arbitration before the Grievance Settlement Board, which scheduled the matter for hearing on December 13, 1983. At the outset of the hearing on December 13th, the Employer objected to the arbitrability of the grievance on two separate grounds: (1) as she was no longer an employee (her employment having been terminated on April 1, 1982), that the Grievor did not have status to grieve; and (2) as the insurance contract did not form part of the collective agreement, that the grievance did not disclose a violation of the collective agreement. 6. 3 As the Board decided the case based on the second ground of objection, it did not find it necessary to deal with the first ground. With respect to the second ground, the Board referred to its earlier decision in Hooey 348/81. In that case, the majority of the panel chaired by the then Chairman of the Grievance Settlement Board, Mr. Weatherill, decided (1) that the employer's obligation was to arrange for long-term income protection insurance, which provided the benefits required to be provided under the collective agreement, and to pay 85% of the premium thereof; (2) that the Grievor's claim for payment of long- term income protection benefits arose under the insurance policy and not under the collective agreement: and, therefore, (3) that the claim was not arbitrable. The Hooey decision was upheld on judicial review. 7. As the preliminary objection raised by the Employer in the earlier hearing in this matter was the same as in 8. 9. 4 the Hooev case, the Board held that the grievance in this case was inarbitrable. The Board's decision was the subject of an application for judicial review. In deciding the matter, the Court held that, by considering itself bound by the Hooev decision in spite of amendments to the collective agree- ment dealing with insurance benefits, which were not in effect at the time covered by the Hooev decision, the Board failed to exercise its jurisdiction. Accordingly, the decision was quashed and the matter remitted to a new panel of the Board for determination. However, instead of directing the Board to decide the objection in light of the amendments to the collective agreement, the Court purported to decide the jurisdictional issue itself, expressing the view that the grievance was in fact arbitrable. Subsequent to the release of the Divisional Court's decision, leave to appeal was granted. Before the appeal was heard, however, the parties agreed to bypass the appeal procedure and remit the matter to another panel of the Grievance Settlement Board. The matter is now before this panel of the Board for determination. The issue to be decided is whether the Board has 5 jurisdiction to determine the merits of the Grievor's complaint that she has been improperly denied long-term income protection benefits or, in other words, whether a claim for long-term income under the 1982-83 collective protection benefits is arbitrable agreement. In order to decide this issue, it is necessary to con- sider the relevant provisions of the 1980-81 and 1982-83 collective agreements: 1980-81 COLLECTIVE AGREEMENT "ARTICLE 27 - GRIEVANCE PROCEDURE 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. ” ... "ARTICLE 41 - LONG TERM INCOME PROTECTION 41.1 The Employer shall pay eighty-five percent (85%) of the monthly premium of the Long Term Income Protection Plan. 41.2 (a) The Long Term Income Protection benefit is sixty-six and two-thirds percent (66 2/3%) of the employee's gross salary at the date of disability, including any retroactive salary adjustment to which the employee is entitled, reduced by the total of other disability or retirement benefits payable under any other plan toward which the Employer makes a contribution except for Workmen's Compensation 6 benefits paid for an unrelated disability, and such benefits are payable until recovery, death or the end of the month in which the employee reaches age 65. (b) Long Term Income Protection benefits commence after a qualification period of six (6) months from the date the employee becomes totally disabled, unless the employee elects to continue to use accumulated attendance credits on a day-to-day basis after the six (6) month period. (c) Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perform any and every duty of his normal occupation during the qualification period, and during the first twenty-four (24) months of benefit period; and thereafter during the balance of the benefit period, the inability of the employee to perform any and every duty of any gainful occupation for which he is reasonably fitted by education, training or experience. 1982-83 COLLECTIVE AGREEMENT "ARTICLE 27 - GRIEVANCE PROCEDURE 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. ... INSURED BENEFITS GRIEVANCE 27.9.1 Where an employee has a complaint that he has been denied benefits pursuant to the insured benefits plans specified in Articles 39, 40, 41, 43 and 56, he shall first discuss the complaint with his supervisor 7 within twenty (20) days of first becoming aware of the complaint. 27.9.2 (a) If the complaint is not satisfactorily resolved by the supervisor within seven (7) days of the discussion, the employee may refer the complaint, in writing, to the Joint Insur- ance Benefits Review Committee established in Appendix 6 and addressed to the Benefits Policy Branch, Civil Service Commission, within an additional ten (10) days. (b) Any referral to the Joint Insurance Bene- fits Review Committee under 27.9.2(a) shall include a release of information form (Appen- dix 7) completed, signed and dated by the employee. (c) The Joint Insurance Benefits Review Com- mittee shall consider the complaint and the Benefits Policy Branch shall give the employee its decision in writing within sixty (60) days of the committee meeting at which the complaint is discussed. 27.9.3 (a) If the complaint is not satisfactorily resolved under 27.9.2, the employee may file a grievance in writing with the Executive Director, Staff Relations or his designee within seven (7) days of the date he received the decision under 27.9.2(c). In the event that no decision in writing is received in accordance with the specified time limits in 27.9.2(c), the grievor may submit the grievance to the Executive Director of Staff Relations within seven (7) days of the date that the Benefits Policy Branch was required to give its decision in writing in accordance with 27.9.2(c). (b) A submission of the grievance to the Executive Director or his designee under this section shall be considered to be the second stage of the grievance procedure for the purpose of this Article. ” ... "ARTICLE 41 - LONG TERM INCOME PROTECTION 8 41.1 The employer shall pay eighty-five percent (85%) of the monthly premium of the Long Term Income Protection Plan. 41.2.1 (a) The Long Term Income Protection benefit is sixty-six and two-thirds percent (66 2/3%) of the employee's gross salary at the date of disability, including any retroactive salary adjustment to which the employee is entitled. (b) Effective August 1, 1982, the L.T.I.P. benefit under 41.2.l(a) will be increased for each employee who commenced to receive L.T.I.P. benefits : (i) from and including January 1, 1975, to and including December 31, 1976, by $100 per month; (ii) from and including January 1, 1977, to and including December 31, 1978, by $70 per month; (iii) from and including January 1, 1979, to and including December 31, 1980, by $50 per month ; in respect of each month the employee continues to received L.T.I.P. benefits under the plan. 41.2.2 The Long Term Income Protection benefit to which an employee is entitled under 41.2.1 shall be reduced by the total of other disability or retirement benefits payable under any other plan toward which the Employer makes a contribution except for Workmen's Compensa- tion benefits paid for anunrelated disability, and such benefits are payable until recovery, death or the end of the month in which the employee reaches age 65. 41.2.3 Long Term Income Protection benefits commence after a qualification period of six (6) months from the date the employee becomes totally disabled, unless the employee elects to con- tinue to use accumulated attendance credits on a day-to-day basis after the six (6) month period. 9 41.2.4 Total disability means the continu- ous inability as the result of illness, mental disorder, or injury of the insured employee to perform any and every duty of his normal occupation during the qualification period, and during the first twenty- four (24) months of benefit period, and thereafter during the balance of the benefit period, the inability of the employee to perform any and every duty of any gainful occupation for which he is reasonably fitted by education, training or experience. ” ... Based on these provisions, the Union submitted that the effect of the amendments to the 1982-83 collective agreement and, in particular, to Article 27, was to allow for the arbitration of disputes relating to a claim for payment of long-term income protection benefits. Accordingly, it was submitted that the grievance in this case protesting, as it does, the termination of long-term income protection benefits, is arbitrable. The Employer, on the other hand, submitted that there is nothing in Article 41, dealing with the provision of long-term income protection benefits, which makes the denial of these bene- fits arbitrable; that Article 41 remains unchanged from the previous collective agreement; and that the only claim which can be brought under Article 41 is that the Employer failed to arrange a policy of insurance, which provides the benefits which are required to be provided under the collective agreement, or that the Employer failed to pay the appropriate premiums. The Employer 10 further submitted that Article 27.9.1 provides a new procedure for dealing with those matters which can be complained about under Section 41 but does not enlarge upon the scope of those matters. Accordingly, it was submitted that the grievance is inarbitrable. By way of reply, the Union submitted that Article 27.9 is not simply procedural but confers substantive rights, i.e., the right to complain about the denial of benefits under various insurance plans including, of particular importance for this case, the long-term income protection plan. In our view, there can be no doubt as to the Board's jurisdiction in this matter. Article 27.9.1, which was introduced in the 1982-83 collective agreement, provides an employee who has a complaint respecting the denial of benefits pursuant to the in- sured benefits plans, including the long-term income protection plan, with access to the grievance and arbitration procedure to have that complaint resolved. There then follows a detailed procedure for the resolution of these grievances, up to and includ- ing arbitration before the Grievance Settlement Board. In our view, although there are procedural aspects to the amendments to Article 27, by expressly providing that complaints respecting the denial of insured benefits can be referred to arbitration, the parties have created substantive rights, which can be pursued up to and including arbitration. 11 We are reinforced in our view by the provisions of Article 27.1, which allows for grievances relating to the obligation to arrange for a policy of insurance in accordance with the requirements of the collective agreement and with the payment of the appropriate premiums thereunder. Were Article 27.9 intended to cover the same matters, there would be no purpose to the amendment. It seems clear, therefore, that Article 27.9 allows for grievances to be brought respecting the denial of long-term income protection benefits. The Board is, therefore, of the view that this matter, which deals with the termination of long-term income protection benefits, is arbitrable. To the extent that this decision is at variance With the Board’s decision in Ross 1059/88, in which a similar objection was raised, we must decline to follow it. We recognize that the Board ought to speak with one voice and that only in exceptional cir- cumstances should one panel of the Board depart from the decision of another: see, in this regard, Blake 1286/87, There are, how- ever, exceptional circumstances in this case which warrant such a departure as it would appear that the panel in was unaware that the earlier Sekhon decision had been overturned on judicial review and that no consideration was given to the amendments to Article 27, It is on the basis of these amendments that the Board asserts jurisdiction In this matter. Therefore, in light of the particular circumstances of this case, the Board finds that the grievance is arbitrable and renaains seised to deal with the griev- ance on its merits, 12 DATED at Toronto, Ontario this 15th day of March, 1990. Maureen K. Saltman - Vice-Chairperson