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HomeMy WebLinkAbout1984-0299.Union.85-08-28IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) Grievor - and - The Crown2n Rfght of Ontario @tntstry of CorredtEonal Services1 Employer Before: I. C. Springate Acting.,Chairman K. O'Ne?l Member .P. camp, Member For the Grfevor: P, A. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: J. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services Hearing: July 9, 1984 . . .:‘: DECISION This matter originally came before a Board panel that included Board Member Mr. E. R. O'Kelly. Subsequent to the hearing, however, Mr. O'Kelly unfortunately passed away. On agreement of the parties,Board Member Mr. P. Camp has joined on the panel as Mr. O'Kelly's replacement. Mr. Camp has had access to the notes taken by Mr. O'Kelly during -the hearing. This matter relates to article 51.1 of the collective agreement between the parties which provides as follows: "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 as follows: (i) with regular salary for the first six (6) working days of absence, (ii) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence, in each calendar year." On January 6, 1984, Mr. Keith Wylie, the chief accountant of the accounts branch of the Ministry of Correctional Services, issued a memorandum to his staff which stated, in part, as follows: 2- "In accordance with Article 51 of the Collective Agreement - Short Term Sickness Plan:- attendance credits .apply when 'an employee is unable to attend to his/her duties due to sickness or injury'. Attendance credits cannot be used for doctor or dental appointments. Such appointments should be made, where possible, on R.D.0.s or at the end or beginning of the work day; otherwise, it will be necessary to use vacation credits or payroll deletion. If flex time is approved by the ministry, then it may be possible to make up the time." On January 9, 1984, employees in the Ministry's Client Information Systems and Records Management branch were advised of the abovementioned policy by way of a memorandum f'rom Mr. R. A. Wills, the Manager of Client Information Systems. The union grieved the propriety of the memoranda issued by both Mr. Wylie and Mr. Wills claiming that they violated article 51 of .the collective agreement. The union contends that employees are entitled to receive payment pursuant to the provisions of article,51.1 when absent from work for the purpose of seeing a doctor or dentist. In response to the grievance the Ministry re-evaluated its position and concluded that the memoranda written by Mr. Wylie and Mr. Wills had been phrased too broadly and that in certain circumstances an employee would be entitled to be paid for days when attending at a : -3- doctor's or dentist's office. Accordingly, the Ministry advised the union that the memoranda in question would be withdrawn. On April 16 and April 18, 1984 respectively, Mr. Wylie and Mr. Wills issued memoranda which retracted their earlier memoranda, and then went on to state as follows: "All leaves of absence from work (i.e. sickness, appointments, vacation, bereavement, etc.) will be granted within the terms of the collective agreement. Other leave arrangements may be requested in writing by employees, and granted at the complete discretion of the branch head." Although the Ministry has withdrawn the memoranda which gave rise to the grievance, the parties continue to'disagree as to the Proper interpretation to~be given to of article 51. The parties have described their disagreement in the following terms: "The ministry takes the position that, as it relates to Article 51 of the current Collective Agreement between the parties, it is obliged to grant an employee's entitlement to a leave-of-absence with pay for doctors' or dentists' appointments only when at the time,of the appointment the employee is unable to attend to his duties due to sickness or injury. -4- The Union believes Article 51 speaks broadly, and that appointments for legitimate medical and dental purposes, whether or not they relate to an immediate sickness preventing ,attendance at work, were intended to be covered by the provisions of the Article." The union's position was ejlpanded upon at the hearing. According to the union, an employee is entitled .to a leave of absence with pay under article 51 when seeing a medical doctor'to be treated for an illness, to have an illness diagnosed or as a preventive step in order ,to avoid a possible illness. Before assessing the relative positions of the parties, we would refer to one additional aspect of the. evidence. In July of 1982, a board of arbitration issued an award which established certain of the terms of the collective agreement between the parties. In its award the arbitration board rejected a union proposal that article 51 be amended so as to cover regular medical checkups and dental appointments. The relevant part of the award reads as follows: "Article 51 - Short Term Sickness Plan The Union proposed an amendment to this article to provide that sick leave is alsoobtainable for regular medical checkups and dental appointments. The present agreement provides that an employee who is unable to attend his duties due to illness or injury, is entitled to a 'leave of absence with pay, with . . : ‘! -5- regular salary for the first 6 working days of absence and 75% of regular salary for an additional 124 working days in each calendar year. Having considered the representation of the parties, the Board rejects the .Union's proposal to amend Article 51 and award that the article, in its present form shall be continued without amendment." An issue similar to the one now before us was dealt with by a board of arbitration in Re General Bakeries Ltd. and Milk and Bread Drivers Union, Local 647, (1981) 2 L.A.C. (3d) 444 (Rayner). The collective agreement in that case provided that an employee absent from work would receive his regular pay,.less $18.00, "if absent for verified personal illness". An employee took time off from work to see a specialist concerning his migraine headaches. The specialist conducted a diagnostic examination. The arbitration board was called upon to decide if the employee's absence from work was due to verified personal illness. The arbitration board concluded that the absence could not be so classified, reasoning as follows: n . . . Mr. Wakely referred the board to an unreported case of Mr. Burkett in 1979, between Bell Canada and the Communications. Workers of Canada. He suggested that that case was directly on point. In that case an employee took time off work to attend a doctor for monitoring. Although Mr. McKee tried to distinguish this case on the basis that in that particular case, the grievor could have switched days off, we do not find this feature to be of any great distinction. . . ,* .( -6- In that case, Mr. Burkett said at p. 6: It is necessary to distinguish three types of doctor's appointments. Employees may visit the doctor because of the onset of health problems which are making it difficult or impossible for them to carry out their daily functions . . . Employees may also visit the doctor after having being .[sic] confined because of sickness in order to be advised as to whether or not they are fit to return to their normal routine . . . Employees may also visit the doctor when they are well enough * to work but suffer from some ongoing health problem which requires periodic monitoring. He concluded that the first two types of appointments could be considered "sickness" for the purposes of the collective agreement. However, the latter type of appointment he concluded did not fall within the purview of the clause in question. The clause in question is fairly similar to the clause before this board. In reaching this conclusion he stated, 'we accept the Company's argument that there is no such thing as perfect health so that the word "sickness" which connotes a lack of health, must be given meaning from the context in which it is used'. After pointing out the duty of the employee. to attend at work if able, he continued by stating: . . . having regard to this fundamental requirement of the employer/employee relationship we are unable to conclude in the absence of clear and compelling language to the contrary, that the term sickness as used by the parties in art. 25.01 of their collective agreement,~ refers to a state of health which would allow -7- a person to attend at work. In our view the term sickness . . . refers to a state of health which renders.a person unable to attend at work . . . In essence, the board in the Bell Canada case had to engage in a line-drawing exercise. Obviously, all appointments with physicians or specialists who treat the body in one fashion or another cannot be said to amount to personal illness. Hence, it becomes necessary to draw a line between those appointments which would be covered by the article in question and those appointments which would not be covered by the article in question. In passing, we point out that we feel that there is no distinction between the word 'illness' and the word 'sickness'. In our view, the reasoning of the board in Re Bell Canada is appropriate for application to the situation at hand. The line drawn by the board in the earlier case is a sensible line and one that protects both parties as much as possible. We therefore adopt the reasoning in Bell Canada. Applying that reasoning to the instant case, we must conclude that the grievor was not absent from work on the day in question because of his chronic migraine headache condition. Rather, he was capable of attending at work but was absent because of the conflict of the doctor's schedule and the company's schedule." Meaningful reference can also be made to Re - Barber-Ellis of Canada Ltd. and United Automobile Workers, Local 347 (1975) 9 L.A.C. (2d) 79 (Brown). In that case the collective agreement provided that employees were entitled to sickness and accident pay. A female employee took some -8- time off work to have a tubal ligation as a.form of birth control. Certain complications arose after the operation which caused her to miss work. The company acknowledged that the employee was entitled to sick pay during the period that she was off work as a result of the complications following the operation. However, the company contended that when the employee took time off work to have the operation itself she was not off work due to sickness. The arbitrator agreed with this contention, reasoning as follows: n . . . I agree with the company's position that this type of operation does not fall within the definition of sickness, as it is applied in the collective agreement. This was a purely voluntary operation and had nothing to do with the grievor's mental or physical health at the time the operation was elected. In other words, it could not be found that the grievor was suffering from any malady which could be described as a sickness for which the indemnity plan is intended to cover. The grievor chose a particular method of birth control for her own reasons and comfort and this is not a sickness, within the meaning of being afflicted with ill health or disease. If the operation had been completed and she had been discharged completely and unconditionally on July 25th with a release to return to work then I would find that such absence from work was not for sickness with [sic].the meaning of the collective agreement and would not be 'covered under the terms of App. C. It was found however, that complications did arise and there is ‘:: -9- no evidence to contradict such a finding which indeed was accepted by the company. From that point, being after the operation when the tissue was found and analyzed, it can be said that the grievor was sick for the ~purposes of art. 1.01(f).” As noted in the Barber-Ellis and General Bakeries cases, every visit to a doctor cannot reasonably be classified as being as a result of sickness or injury. The collective agreement before us limits access to the short-term sickness plan provided.for by article 51 only to an employee "unable to attend to his duties due to sickness or injury". In our view, this wording does not mean that an employee can take advantage of article 51.1 only if it is literally impossible for him to attend work due to sickness or injury. Rather, it should be interpreted as referring to employees who are reasonably unable to attend work because of their sickness or an injury. In line with the reasoning of Mr. Burkett the Bell Canada case referred to above, we are of the view that an employee already off work due to sickness or injury remains entitled to the benefits of article 51 on days that he goes to a see a doctor or dentist. In addition, if health problems make it impossible or even difficult for an employee to carry out his daily functions and as a result the employee visits a dentist or a doctor, that employee is also entitled to the benefits under article 51.1. On the other hand, however, an employee who takes time off work to see a doctor or dentist solely for a routine checkup or for preventive reasons would not be entitled to the benefits under article 51. For such visits to be covered, article 57 would have to be amended in line with the changes which the union sought, but did not achieve, in 1982. While we have set out our views with respect to certain situations where we feel reasonably certain that an.employee would, or would not, be entitled to the benefits provided for by article 5.1, we recognize that other s.ituations may well arise that will be less clear-cut. In that such cases are likely to turn on the specific facts involved, we are.of the view that no useful purpose would be served by us trying to speculate as to what the results might be. Rather, ~such situations will, have to be dealt with individually as and whenthey come before the Board. The original memoranda put out by the Ministry indicating that article 51 would not cover any doctor or dental appointments ware too broad. The union's challenge to the memoranda accordingly succeeds. No remedial order is required, however, in that the memoranda in question have already been withdrawn. We are unable to accept the union's contention that article 51 covers all appointments for legitimate medical and dental purposes. Rather, it covers such appointments only when they occur in connection with "an employee who is unable to attend to his duties due to sickness or injury". Dated at Toronto this 28th day of August, 1985. -.- ./?zzg. JL-s+ P. Camp, Member