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HomeMy WebLinkAbout1984-0780.Marks.86-04-29IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befae THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Rosalie Marks) and The Crown in Right of Ontario (Ministrv of Communitv and Social Services) I 1 _ Employer Grievor Before: For the Grievor: For the Employer: Hearing K. P. Swan P. Craven 8. Lanigan ‘Vice-Chairman Member Member M. Cornish Counsel Cornish dr Associates Barristers & Solicitors N. Robinson Staff Relations Officer Staff Relations Branch Civil Service Commission April 15, 1985 E . .; :” -:1 DECISION A hearing in this matter was held in Toronto on April IS, 1985. The issue for resolution is the grievance of Mrs. Rosalie Mark, dated August 24, 1984, relating to the refusal of the employer to pay her Supplementary Unemployment Benefits during her maternity leave and following her lay-off August 31, 1984. The matter came before the board by way of agreed statement of fact, which was as follows: 1. 2. The Crie.vance Settlement Board has jurisdiction in this matter. The provisions of ef the Collective Agreement with respect to Waking Conditions and Employee Benefits, signed on December 17, 1982 and covering the period from 3anuary 1, 1982 to December 31, 1983, were in effect at all times relevant to this grievance. 3. On December 10, 1976, Mm. Mark (the griever) was appointed to the civil service as a Residential Counsellor (Coumellor 2, Residential Life) in the Residential Services Department, Pine Ridge, Aurora, inthe Ministry of Community and Social Services. The Crievor remained in this position until she was laid off in accordance with Article 24 of the Collective Agreement and thereby was released from employment (1aidoff)under Section 22 (4) of the Public Service Act on August 31, 1984. 4. On September 19, 1983, the grievor was identifiedas a surplus employee and notified that, unless an assignment had been made in accordance with Article 24 of the Collective Agreement, she would be laid off as of March 31, 1984, due to the closure of the Pine Ridge facility. That date was extended to June 30, 1984 (by letter of March 6, 1984) and then to August 31, 1984 by letter of May 23, 1984). 5. The griever was extended the opportunity to be interviewed for an existing position of Counsellor 2, Residential Life, at Huronia Regional Centre, under Article 24.2.2 of the Collective i i .., 6. 7. 8. 9. 10. II. 12. 13. -2- ;- Agreement. The grievor refused this offer as it was outside the 40 km. radills. No assignment was made under Article 24.2.1 or Article 24.2.3 of the Collective Agreement. The grievor did not elect to displace another employee under Article 24.8 of the Collective Agreement. On July 23, 1984, the Ministry approved a maternity leave for. Mrs. Mark, in accordance with Article 49 of the Collective Agreement fa the period August 13, 1984 to December 12, 1984. (Attached). A medical certificate dated June 27, 1984 indicated that the expected date of confinement was October 25, 1984. When the griever learned in mid-August that the Supplementary Unemployment Benefit would not be paid beyond August 31, 1984 she requested that this maternity leave sub-allowance be continued after the lay off date of August 31, 1984. Her written request wkras dated August 20, 1984. On August 21, 1984, the Ministry denied the request, noting that August 31,1984 would be the final payment day for the maternity sub-allowance. Mrs. Mark’s last day at work was August 11, 1984. She began her maternity leave August 13, 1984. For the first two weel6 (i.e. August 13 - August 24, 1984) she waspaid the equivalent of 93% of the actual weekly rate of pay for her classification, which she was receiving on the last day worked pria to the commencement of the maternity leave, in accordance with Article 49.3.2 (a) of the Collective Agreement. Fa the period August 27 to August 31, 1984, the Ministry made a payment equivalent to the difference between the U.K. benefit received by Mrs. Mark and 93% of the actusl weekly rate, of pay for her classification, which she was receiving on the last day worked pria to the commencement of the maternity leave. (Article 49.3.2 (b) of the Collective Agreement.) On August 31, 1984, the grievor was laid off. As of the date of lay off the iMinistry terminated the payments made under Article 49.3.2 (b). Subsequent to her lay off the grievor states that, due to her financial circumstances, she applied for a refund of pension contributions made by her between 1976 and 1984. In accordance with the provisions of the Public Service Superannuation Act, the employer refunded those contributions. The employer made termination payments to the grievor in accordance with Article 52.3 and 52.4 of the Collective Agreement. In addition, coverage for the griever under all insured plans fa which the grievor had elected coverage (i.e. i -3- ;- Basic Life, OHIP, LTIP) was terminated. 14. The grievor regularly receives copies of Topical each week and copies of vacancy postings pursuant to Article 24.14 of the Collective Agreement. She remains unemployed. 15. On August 24, 1984, the grievor filed the following grievance: “I grieve the employer is breaking Article 49 of the Collective Agreement because they are refusing to pay me the Supplementary Unemployment Benefit Plan Allowance.” Settlement required: “that the employer pay me all Supplementary Unemployment Benefit Plan Allowance, with bank interest, that is provided in Article 49:’ 16. The issue befae the Board is whether an individual who has been laid off in these circumstances is entitled to the Supplementary * Unemployment Benefit Allowance pursuant to Article 49 of the Collective Agreement. I.. : >,” .,.~ ,, Article 49 of the Waking Conditiw and Employee Benefits collective agreement provides for maternity ‘leave. The parts of the article which are relevant to this arbitration are as follows: ARTICLE 49 - MATERNITY LEAVE 49.1 A Deputy Minister shall grant leave-of-absence without pay and without accumulation of credits for the purpcee of childbirth to a female employee who has served mae than one (1) year including service as a Crown employee immediately pria to her appointment to the civil service. 49.2 The leave-of-absence shall be in accordance with the provisions of The Employment Standards Act. 49.3.1 An employee entitled to maternity leave under this Article, who provides the Employer with proof that she has applied fa and is eligible to receive unemployment insurance benefits pursuant to Section 30, Unemployment Insurance Act, 1971, shall be paid an allowance in accordance with the Supplementary Unemployment Benefit Plan. .c- -4- 49.3.2 ‘In respect of the period of maternity leave, payments made according to the Supplementary Unemployment Benefit Plan will consist of the following: (a) fa the first two (2) weeks, payments equivalent to ninety-three percent (93%) of the actual weekly rate of pay for her classification, which she was receiving on the last day worked prior to the commencement of the maternity leave. and 0-d up to a maximum of fifteen (15) additional weeks, payments equivalent to the difference between the sum of the weekly UIC benefits the employee is eligible to receive and any other earnings received by the employee, and ninety-three percent (93%) of the actual weekly rate of pay for her classification, which she was receiving on the last day worked prior to the commencement of the maternity leave. The other major provision in the collective agreement to be considered ls Article 24, a lengthy and complex provision dealing with the rights of employees who are laid off. The general rights are set out in dacse 24.1, which is as follows: ARTICLE 24-JOB SECURITY 24.1 Where a lay-off may occur by reason of shortage of work or funds or the abolition of a position or other material change in organizaticn, the identification of a surplus employee in an administrative district ore unit, institution or other such work area and the subsequent assignment, displacement or lay-off shall be in accordance with seniority subject to the conditions set out in this.~Article. Clauses 24.2, 24.3 and 24.4 all provide fa the assignment of the surplus employee to another vacant position in certain circumstances. As is set out in the agreed facts, no such assignment was made in this case. Where there is no assignment, ‘, L.’ .’ : ~” of the Public Service Act is as follows: ;- clause 24.5 applies; it is as follows: -5- A 24.5 Where an employee has not been assigned to a vacancy in accordance with sub-sections 24.2.1, 24.2.2 or 24.2.3, he shall be subject to lay-off in accordance with the following applicable sections. Clause 24.6 provides fa an employee who is subject to lay-off to elect to displace another employee. The grievor made no such election, and therefore clause 24.7 was applied to her situatian 24.7 Where no displacement is possible under Section 24.6 or where the employee chooses not to exercise those rights, he shall be laid off. Clause 24.14 provides fa “an employee who has been’ released”. Basically, such a person is entitled to notice of vacancies for which he or she is qualified, and appointment to such vacancy if certain qualifications are met, for a period of one year after the release. Finally, clause 24.16 provides: 24.16 For purposes of Article 24 lay-off means the same as release as per Section 22 (4) of The Public Service Act, Revised Statutes of Ontario, 1970, Chaptea86. To complete this description of the applicable provisions, Section 22 (4) . . : ;I -a. :’ z -6- ;- 22 (4) A deputy minister may release from employment in accordance with the regulations any public servant where he considers it necessary by reason of shortage of work or funds or the abolition of a position or other material change in organization. The other applicable statutory provision is the Employment Standards Act, which is incorporated by reference into the Collective Agreement in dame 49.2, and is in any case binding on the Crown because of Section 2 Cli of the A’ct itself. The relevant provisions of the Employment Standards Act are: PREGNANCY LEAVE 35 No employer shall terminate the employment of a lay off.an employee who is entitled to a leave of absence under section 36, but the employer may require the employee to commence a leave of absence pursuant to section 36 at such time as the duties of her positim cannot reasonably be perfamed by a pregnant woman or the performance of her work is materially affected by the pregnancy. R.S.O. 1980, c. 137, s. 35 36 (1) An employee who is pregnant and who has been employed by her employer for a period of at least twelve months and eleven weeks immediately preceding the estimated day~of her delivery, whether such employment commenced before or after the coming into face of this Act, shall be entitled upon her application therefor to a leave of absence of at least seventeen weeks from her employment or such sbrter leave of absence as the employee may request commencing during the oeriod of. eleven week immediately preceding the estimated day of her delivery. (2) Notwithstanding subsection (1) and subject to sub-section (5), where the actual date of her delivery is later than the estimated day of her delivery, the leave of absence shall not .end before the expiration of six weeks following the actual date of her delivery. (3) The employee shall give her employer two weeks notice~in writing of the day upon which she intends to commence her leave of absence ‘and furnish her employer with the certificate of a legally qualified medical practitioner stating that she is pregnant and giving the estimated day upon which delivery will occur in his opinion. I’. .,: . . 37 38 (4) (5) (1) (2) Subject to subsection (5), an employee may, with the consent of her employer,shorten the duration of the leave of absence requested under subsection (1). An employee may shorten the duration of the six week period mentioned in subsection (2) upon giving her employer one week’s notice of her intention so to do and furnishing her employer with the certificate of a legally qualified medical practitioner stating that she is able to resume her work. R.S.O. 1980,~. 137,s. 36: An employee who does not apply’fa leave of absence under section 36, and who is otherwise entitled to pregnancy leave thereunder, shall be entitled to and shall be granted leave of absence in accordance with section 36 upon providing her employer before the expiry of two weeks after ‘she ceased to work with a certificate of a legally qualified medical practitioner stating that,she was not able to perform the duties of her employment because of a medical condition arising from her pregnancy, and giving the estimated day upon which, in hi opinion, delivery will occur or ~the actual date of her delivery. R.S.O. 1980, c. 137, s. 37. An employee who intends to resume her employment on the expiration of a leave of absence granted to her under this Part shall so advise her employer and on her return to work her employer shall reinstate the.employee to her position or provide her with alternative work of a comparable nature at not less than her wages at the time her leave of absence began and without loss of seniaity or benefits accrued to the commencement of her leave of absence. Where the employer has suspended or discontinued operations during the leave of absence and has not resumed operations upon the expiry thereof, the employer shall, upon resumption of operations, reinstate the employee to her employment or to alternate work in accordance with an established seniority system cr practice of the employer in existence at the time her leave of absence began with no loss of seniority or benefits accrued to the commencement of her leave of absence. and in the absence of such a system or practice shall reinstate the employee in accordance with subsection (1). R.S.O. 1980, c. 137, s. 38. There is no dispute that, at ,the time of her application fa a maternity leave, the griever was entitled in accordance with Article 49 to such a leave. She had met the service requirements set out in Clause 49.1, and she had made . . :. ,‘. : applicatim pursuant to Section 36 of the Employment Standard Act, which is the procedure established by the incorporati-m of those provisions in the Collective Agreement in Clause 49.2. There is no doubt that she was, therefore, “entitled to maternity leave under this Article” for the purposes of clause 49.3.1, and there is no dispute that she was eligible to receive Unemployment Insurance Benefits, and therefore a supplementary unemployment benefit under that clause and clause 49.3.2.. Indeed, she was paid by the employer from the supplementary unemployment benefit plan fa two weelo pursuant to clause 49.3.2 (a), and f-a one further week pursuant to clause 49.3.2 8). The issue between the parties is therefore not whether the grievor was entitled to a maternity leave and the payment of supplementary unemployment benefit during that leave, but whether that benefit would continue beyond the date of her lay off in accordance with the provisions of Article 24. The employer argues that entitlement to any benefits under Article 49, are dependant upon the recipient of those benefits remaining %I employee ‘I; in the employer submission, the effect of Article 24.7 and 24.16, combined with Section 22 (4) of the EJublic Service Act, is that the grievor ceased to be an employee on August 31, 1984, and with that change in status she ceased to have any rights whatsoever under the Collective Agreement, and in particular Article 49. Both counsel presented a number of interesting arguments relating to the Collective Agreement, the Employment Standards Act, and arbitral jurisprudence. In our view, this matter may be resolved simply by referring to the Collective Agreement itself, and since that is centerpiece of our jurisdiction, we do not propose to go any further. i ;, i . 7 -9- In our view, it is obvious that a person laid off under Article 24 does not cease to have rights under the Collective Agreement, although those rights are very considerably diminished. The employee has certain rights tom notice of vacancies and to reappointment if qualified to a vacancy; those rights continue for one year. In addition, an employee thus reappointed has a right, under Article 25, to count, as continuous ser’vice, service accrued both before and after any period of layoff. Moreover, the parts of the Collective Agreement dealing with employment benefits all contemplate the possibility that some benefits may continue even after an employee ceases to be a civil servant. Clause 39.4 provides that basic life insurance coverage terminates at the end of the month in which an employee ceases to be a civil servant. Clause 40.3 makes similar provisions for supplementary life iraurance. Clause 41.5 provides that the Long Term Income Protection terminates at the end of the month in which an employee ceases to be a civiiservant, but employees who are totally disabled on the date of the expiry of that imurance continue to be insured for that particular disability. Article 41.3, however, permits certain benefit plans to continue for as long as an employee is qualified to receive Long Term Income Protection benefits. Subject to this .continuation, supplementary health and hospital imurance is terminated by clause 43.5 at the end of the month in which the employee receives his last pay from the employer. Only the dental plan, pursuant to clause 56.4, ceases coverage on the very date of the termination of employment. Having regard to the extent to which the parties have been careful to set out in precise terms the cessation of entitlement to coverage under the various benefits plans, it is of considerable significance that the maternity leave provision, - lo- . * which is found in this same part of the Collective Agreement, includes no provision fa the cessation of entitlement. Whether or not that was based ‘upon the mandatay provisions of the Employment Standards Act, it is our view that the Collective Agreement must be interpreted to mean that the parties were of the view that a maternity leave, at least once commenced, would not end until it had run its full course pursuant to the Employment Standards Act. The language of Article 49 is mandatory, and there is simply no suggestion that the entitlement, once established, can be vitiated by any action of the employer whatsoever; in our view, the only thing that can reduce the length of the maternity leave is a request by an employee fa a shorter leave of absence pursuant to Section 36 (I) of the Employment Standards Act. We are therefore of the view that, in the particular circumstances of this case, the grieva was entitled to the full maternity leave she had requested, and the full payment of supplementary unemployment benefits during that period. Whether the fact of her pregnancy and request for pregnancy leave actually had the effect of suspending her lay off until the leave had expired, and what her ‘. entitlement might have been had her lay off been effectrve sometime before the commencement of her maternity leave, we here express no opinion. Those further complications may await a case in which they squarely arise. At the request of the parties, we shall remain seized in order to resolve any difficulties which may be encountered in the implementation of this award. We wish to thank counsel for their very helpful submissions. -; -’ ‘<. ! - 11 - -i DATED in Toronto, Ontario this 29ch day of April, 1986. - _-..- _--------- Proi. P. Craven, Member "I dissent" (Dissent to follow) 8. Lkgan, Member