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HomeMy WebLinkAbout1985-0050.Union.86-01-08IN THE MATTER OF AN ARBITRATION Under THE CROVN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) and The Crown in Right of Ontario (Ministry of Community and Social Services) Before: For the Grievor: For the Employer: Heariw G . Brent Vice-Chairman S. Dunkley Member W. A. Lobraico Member C.G. Paliare Counsel Cowling & Henderson Barristers & Solicitors 8. Atkinson Courrsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors November 12, 1985 Grievor Employer DECISION The matter before the board arises out of a grievance (Ex. 1) which alleges that the Employer "at the Rideau Regimal Centre uses a 'benefit credit date' in a manner which is improper, det+imental, and contrary to the rights of employees which are established by The Collective Agreement': There were no preliminary objections raised concerning the jurisdiction of the board to hear and determine the matter. The sole issue placed before us is whether the Employer is justified in deducting periods of absence from work while an employee is on Long Term Income Protection benefits (hereinafter referred to as LTIP) from the employee's "continuous service" for the purpose of calculating vacation entitlement under the collective agreement The term "benefit credit date" as referred to in the grievance is not found in the collective agreement; it is a term created by the Employer to account for any interruptions in the employee's service which it takes into account when calculating vacation and severance pay credits (see Exhibit 4). The Employer does deduct from "continuous service" the period of time during which an employee is on LTIP benefits for the purpose of calculating vacation entitlements, and the sole question c before us is whether such a practice violates the collective agreement. The relevant portions of the collective agreement are set out ARTICLEZ~- sm10RITY uaNGTEoPawrIuuolJs SERVICE) 25.1 in employee's length of continuous service will accumulate upon completion of a probationary period of not more than one (1) year and shall co-nce from: (al the date of appointment to the Classified Service for those employees with no prior service in the htario Public Service; or (b) the date on which an employee commences a period of unbroken, full-time service in the public service, immediately prior to appointment to the Classified Service. "Unbroken service" is' that which is not interrupted by separation from the public service; and "full-time" is crmtinuous employment as set out in the hours of work schedules for the appropriate classificaticns. 25.2 Where an employee has been released in accordance with Article 24 (Job Security) and rehired within two (2) years, the period of absence shall not be computed in determining the length of cmtinuous service. Howeve~r, periods of continuous service before and after such absences shall be considered continuous and are included in determining the length of continuous service. .25.3 Continuous service shall be deemed to have terminated if: (a) an employee resiqs or retires: or / (b) an employee is dismissed unless such ~dismissal is reversed through the grievance procedure; or (c) an employee is absent without leave in excess of ten (10) consecutive working days; or (d) an employee is released in accordance with Article 24 (Job Security) and remains released for more than two (2) years. ARTICLE41 -LONGTERMINCC4BPlW!lXCTICBl . . . . . . . . . . 41.7 If an employee who is in receipt of L.T.I.P. benefits is resuming employment on a gradual basis during recovery, partial benefits shall be continued during rehabilitative employment. 'Rehabilitative employment" means remunerative employment while not yet fully recovered, following directly after the period of total disability for which benefits were received. When considering rehabilitative employment benefits, L.T.I.P. will take into account the employee's training, education and experience. The rehabilitative benefit will be the monthly L.T.I.P. benefit less fifty percent (50%) of rehabilitative employment earnings. The benefit will continue during the rehabilitative. employment period up to but not more than twenty- four (24) months. Rehabilitative employment may be with the Employer or with another employer. . . . . . . . . . . 41.9 Employees while on rehabilitative employment with the Ontario Government will earn vacation credits as set out in Article 46 (Vacations and Vacaticn Credits). . . ...*.... 4 M?CICLE~~- VACATIONS AND VACATION CREDITS 46.1 46.2 46.3 46.8 46.9 Effective January 1, 1982, an employee shall earn vacation credits at the following rates: (a) One and one-quarter (l-1/4) days per month during the first ten (10) years of continuous service; (b) one and two-thirds (l-2/3) days per month after ten (iD) years of continuous service; (c) Two and one-twelfth (2-l/12) days per month after eighteen (18) years of continuous service. An employee is entitled to vacation credits under section 46.1 in respect of a month or part thereof in which he is at work or on leave with Pay. AII emploYee isnotentitledto vacation credits under section 46.1 in respect of a whole month in which he is absent from duty for any reason other than vacation leave-of-absence'or leave-of- absence with pay. .I........ where an employee has completed twenty-five (25) years of continuous service, there shall be added, on that occasion only, five (5) days of vacation to his accumulated vacation entitlement. An employee who completes twenty-five (25) years of continuous service on or before the last day of the month in which he attains sixty-four ~(64) years of age is entitled to receive five (5) days of pre-retirement leave with pay in the year ending with the end of the month in which he attains the age of sixty-five (65) years. . . . . . . . . . . ARTICLE52- TERKXNATIopll PAYNESTS . . . . . . . . . . 52.7 For purposes of determintng qualification for severance pay and the amount of severance pay to which an employee is entitled, an employee's continuous service shall not include any period: . . . . . . . . . . (b) wha he is receiving benefits under the Long Term Inconk? Protection Plan; . . . . . . . . . . Counsel for the partie* also referred us to the following cases: r i ’ , 5 OPSEU and The Crown in Right of Ontario (Civil Service COmmission) GSB File #263/80; & Canadian Union of Public Employees, Local 43, and Municipalityf Metropolitan Toronto (19721, 24 LAC 318 (Weiler); andE Andres wines (B.C.) Ltd. and united Brewery and Distillery workers, ---- - Local 300 (1977), 16 LAC (2d) 422 (B.C.L.R.B., Weiler). -- We have considered with care the collective agreement, the submissims made by counsel for the parties, and the cases cited to US in reaching our conclusion.. Article 46 deals with vacations and vacation credits. When Articles 46.1, 46.2, and 46.3 are considered, it is clear that the parties agreed that employees would earn vacation credits only for those months during which they were actually at work or on leave with p'~y. Article 46.1 sets out the rate at which the credits would be earned, and Articles 46.2 and 46.3 determine the months for which that rate would be earned. Only Article 46.1 speaks of "continuous service". Article 46 does not define "ccmtinuous service" nor does it specify, as in Article 52.7 for example, how "continuous service" should be calculated for a given purpose. '%cmttiuous service" is a term which the parties defined in Article 25. In that article they specified one hiatus in "ccatinuous service" calculation, and they also specified what constitutes the termination of 'hmtinuous service". Article 25 does not menticn either vacatims or LTIP. Article 41 sets out the provisions which relate to LTIP benefits. That article is silent about "continuous service" calculation. The anly specific reference to vacations is in Article 41.9. We consider that the reasonable andlogicalway to interpret the term "continuous service" throughout the collective agreement is to interpet it in a manner which is consistent with the definition which 6 the parties themselves agreed to in Article 25. In so doing we would have to take care to determine whether the parties agreed upon a specific exception to the normal definition (as in Article 52.7), or whether the agreed definition would lead to an absurd and inconsistent result. As mentioned earlier, we agree that the parties have constructed a provision in Article 46 where vacations are earned benefits. Generally speaking, an employee must be actively at work in order to earn vacaticn credits (see Articles 46.2 and 46.3). Article 46.1 doesnot deal with ths process by which an employee earns vacation credits; it deals with the rate at which those credits are earned. Article 46.1 does not specify that an employee mu6t be actively at work or on leave with pay in order to qualify for a particular rate; it speaks only of "continuous service". 'continuous service", as defined in Article 25, is dependent upon the individual's continuing employment status. There is no mention in Article 41 of any circumstance which would.interrupt "continuous service". It is therefore our conclusion that, given the clear wording of Articles46.1, 46.2 and46.3, an employee on LTIP, whose "continuous service'hasnotbeen terminated or broken as provided for in Article 25, continues to qualify for the appropriate increases in rates under Article 46.1, even though not actively at work. Naturally, given Articles 46.2 and46.3, even though the employee on LTIP continues toqualify for increases in rates based on years of being an employee, the employee on LTIP has no manths of work to which to apply those rates in order to earn vacation credits. The employee on LTIP will have no months of work to which to apply the rates until he/she leaves LTIP and returns to work. We consider that Article 41.9 7 merely allows the employee on the LTIP rehabilitative programme to earn credits even though he/she may still be considered to be disabled. In our view this interpretation is consistent with the concept of vacations as earned benefits and is also consistent with the interpretation given Articles 46.8 and46.9 in OPSEU and The Crown in -- --- Right of Ontario (civil Ser&e Commissicn) GSB File #263/80. we see no basis for cacluding that the parties intended to exclude employees (II LTIP from the group of employees who would meet the requirements for increasing the rate at which they couldearn vacation credits - even though they couldnot actually earn credits at that rate until they returned to work. We consider that had the parties wished to consider LTIP as being a hiatus in "continuous service" for the purpose of Article 46.1 they would have so specified, just as they did in the case of severance pay (Article 52.7). For all the reasons set out above, we conclude that for the purpose of Article 46.1 "continuous service" is not broken by any period of time spent on LTIP and we so declare. We further order the Employer to rectify employee vacation records in accordance with this ruling. By agreement of the parties, we will remain seized of the matter in the event that parties cannot agree on the relief to be'granted in relation to any individual. DATED AT LONDON, ONTARIO THIS 8th DAY OF 'January, ~‘Y&& G. Brent, Vice Chairman W. A. Lobraico, Member