GSB# 1701/99, 1702/99
UNION# 00D013, 00D014, 00D015, 00D016, 00D017, 00D018, 00D019, 00D020, 00D021, 00D022
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Fraser et al.)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Public Safety and Security)
Employer
BEFORE
Ken Petryshen
Vice-Chair
FOR THE UNION
George Richards Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Meredith Brown Counsel Management Board Secretariat
HEARING
October 29, 2002.
DECISION
I have before me ten grievances filed in November 1999 by five correctional officers. Each of the five filed two identical grievances, one claiming that the Employer has refused to pay him his full financial benefit as awarded by the WSIB and another claiming that the Employer discriminated against him because it did not report holidays when reporting lost income to the WSIB. There was no challenge to my jurisdiction to hear and determine these grievances.
In addition to a number of exhibits, the parties filed a Joint Statement of Facts, the text of which provides as follow:
The five grievors are correctional officers who were absent for varying periods after they suffered work related injuries, for which they were in receipt of WSIB benefits. Each of these persons has filed two grievances.
Grievances 00D013-17 allege refusal to pay the grievors full WSIB benefits because they are not paid WSIB benefits on holidays. (Ex. 1-5)
Grievances 00D018-22 allege discrimination in that the Employer has not accurately reported to the WSIB the holiday entitlements of employees on WSIB. The grievances allege that the action of the employer in not reporting all the time lost due to injury amounts to discrimination on the basis of disability. (Ex. 6-10)
When an employee is absent due to a work related injury for which an award is made under the Workplace Safety & Insurance Act, the Employer reports the hours of lost work to the WSIB.
Pursuant to Article 41.2 of the collective agreement, the employee’s salary shall continue to be paid for a period of 3 months or 65 days following the date of the first absence. When the 65 day period has expired and the award under the WSIA is less than the employee’s full salary, and the employee has accumulated credits, the difference between the regular salary and the award shall be converted and deducted from the accumulated credits as per article 41.3.
Employees are entitled to paid statutory holidays as set out in article 47.1. A number of holidays recognized in the collective agreement occurred during each of the grievors’ absences due to work related injuries.
The grievors were all scheduled to work on these holidays, and would have worked, but for their injuries.
When an employee scheduled to work a statutory holiday does not actually work, for any reason including but not limited to sickness, bereavement leave, or work related injury, the practice of the Employer at the time of the grievances was to treat the day as a statutory holiday taken on the day itself. (Article COR 13, Ex. 11 Memo dated October 25, 95, Ex. 12, Memo dated Nov. 8, 99) The employee then became entitled to the holiday pay under article 47.1. For purposes of WSIA, the day did not count as one of the 65 days under article 41.2.
In keeping with the above policy, the Employer did not treat the statutory holiday as covered by advances from the Employer. When the Employer reported the amount of time lost due to injury and covered by advances, the statutory holiday time was not included in the calculation of lost time.
The grievors received holiday pay for each of the holidays on which they were absent.
Following a request from the Union Steward, Rick Fischuk, the Employer confirmed to the WSIB that holiday time had not been reported and had not been covered by advances to the workers. (Ex. 13-17, Letters dated March 22 and March 14 from R. Levinski to WSIB).
The WSIB directly paid the grievors 85% of their net salary for the days in question. (Ex. 18, copy of the payment stub sent to Mr. Ellis is representative of the payments that were made to each grievor).
The Board made this payment pursuant to its own guidelines that workers are entitled to receive both full compensation benefits and advances without deduction, during those periods when they are taking holidays, vacations, etc., granted by a collective agreement. (Ex. 19, exerpt from WCB Guideline 05-01-04).
Article 47.1 of the Central Collective Agreement provides that employees are entitled to 11 paid holidays each year. Article COR13 in the Correctional Bargaining Unit Collective Agreement addresses the issue of work on a holiday. COR13.1 provides that an employee who works a holiday is entitled to 2 times his or her hourly rate, as well as a credit for the day. For an employee authorized to work, but does not work the holiday, COR13.3 provides as follows:
COR13.3 It is understood that Articles COR13.1 and COR 13.2 apply only to an employee who is authorized to work the holiday and who actually works on the holiday, and that an employee who, for any reason, does not actually work on the holiday shall not be permitted to the payments described herein.
Article 41 of the Central Collective Agreement deals with workplace safety and insurance. The relevant sections of that provision provide as follows:
41.2 Where an employee is absent by reason of an injury or an occupational disease for which an award is made under the Workplace Safety and Insurance Act, his or her salary shall continue to be paid for a period not exceeding three (3) months or 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 occupational disease, and any absence in respect of the injury or occupational disease shall not be charged against his or her credits.
41.3 Where an award is made under the Workplace Safety and Insurance Act to an employee that is less than the regular salary of the employee and the award applies for longer than the period set out in Article 41.2 and the employee has accumulated credits, his or her regular salary may be paid and the difference between the regular salary paid after the period set out in Article 41.2 and the compensation awarded shall be converted to its equivalent time and deducted from his or her accumulated credits.
The main issue for determination is whether the grievors were properly compensated under the Collective Agreement in circumstances where they would have worked a holiday but for their absence due to a work related injury. When the Employer eventually advised the WSIB that holiday time had not been reported and had not been covered by advances, the WSIB directly paid the grievors 85% of their salary for the days in question. The Union takes the position that the Employer is obliged to pay the grievors the remaining 15% of their salary for the days in question, pursuant to Article 41.2 of the Collective Agreement.
This is not the first occasion on which the GSB has been required to decide the entitlement of employees who are unable to work a scheduled shift on a holiday due to a work related injury. In earlier decisions such as Charboneau, 544/81 (Barton) and Mattison, 0228/87 (Ratushny), decisions decided prior to the collective agreement commencing on January 1, 1989, the Board found that a grievor who was unable to work on a holiday because of a compensable injury was entitled to both regular pay and holiday pay, or a lieu day. However, amendments to the collective agreement, particularly to what is now COR13, which were first introduced in the collective agreement commencing on January 1, 1989, have led the Board to a different conclusion. I was referred to a number of decisions which were decided after the amendments to the collective agreement were made, including: Whittard, 255/91 (Watters); Arnold, 255/91 (Dissanayake); Cleveland, 2350/92 (Stewart); and, Rundle, 2259/92 (Kaufman).
In the Whittard decision, the grievor was unable to work her shift on Labour Day 1990 due to a work related injury for which she received WCB benefits. The grievor claimed that she was entitled to 8 hours lieu time for the holiday. The panel dismissed her grievance after concluding that “the right to claim both salary and holiday pay, or compensating time off, ended with the amendments to the collective agreement”. The panel also concluded that entitlement did not flow from what is now Article 41.2. The Arnold decision dealt with an employee who was unable to work a scheduled holiday because of illness. Utilizing the doctrine of “the fundamental reason for the absence”, the panel departed from the approach in Whittard by directing the Employer to pay the employee sick pay for the day in question and to restore to the employee a one day credit. However, subsequent decisions did not follow the approach in Arnold. In the Cleveland decision, the grievor was absent on the Victoria Day holiday and was in receipt of workers’ compensation benefits for the relevant period. The Union argued that the Employer ought to have attributed 12 hours payment to workers’ compensation and also that the grievor should be credited with holiday entitlement for that day. Noting that the changes to the collective agreement and the Whittard decision had not been brought to the attention of the Arnold panel, the Cleveland panel followed the approach in Whittard. It concluded that the application of a general doctrine, such as “the fundamental reason for the absence” is “subject to conclusions that result from more specific indications of the intention of the parties” and that the language changes in the collective agreement provided that specific indication. The panel in the Rundle decision also agreed with the Whittard approach.
The Union argued that a distinguishing feature of the case at hand from the earlier decisions following the approach in Whittard is that these grievors were awarded WSIB benefits for the holidays in question. The Union made representations regarding the meaning of the term “award” in Article 41.2. The Union also submitted that it was appropriate to apply the doctrine of “the fundamental reason for the absence” in this case.
It is my conclusion that the Employer is correct in its submission that the Whittard decision, and those decisions which approved of the Whittard approach, correctly interpret the relevant provisions of the Collective Agreement. The fact that the grievors received WSIB benefits for the holidays in question pursuant to the WSIB’s own guidelines for such situations does not, of course, affect the interpretation of the Collective Agreement. I also agree with the view expressed in the Cleveland decision to the effect that the doctrine of “the fundamental reason for the absence” is inapplicable in these circumstances, given the specific language contained in the relevant provisions of the Collective Agreement. Article 41.2 is a provision designed to provide salary continuation for employees who are absent due to a work related injury. Because employees absent on a holiday are not entitled to their salary, given the agreement of the parties in COR13.3, Article 41.2 does not assist the grievors in these circumstances. By not treating the holiday as one of the 65 days under Article 41.2 and by paying the grievors holiday pay for each of the holidays on which they were absent, the Employer has satisfied its obligations under the Collective Agreement. Accordingly, the grievor are not entitled to the 15% “top up” for the days in question.
The second set of grievances raises the issue of whether the failure of the Employer to report to the WSIB all lost time due to injury amounts to discrimination on the basis of disability. The Employer eventually did report the holiday time and indicated to the WSIB that this time had not been covered by advances. The grievors did receive the benefits owing directly from the WSIB. There is no indication that the Employer will not include holiday time in its calculation of lost time when reporting to the WSIB in the future. In any event, these circumstances do not support the conclusion that the Employer discriminated against the grievors on the basis of a disability. The Employer treated all employees who did not work their scheduled shift on a holiday for whatever reason in the same way.
For the foregoing reason, the ten grievances before me filed in November 1999 are dismissed.
Dated at Toronto, this 27^th^ day of June, 2003.