GSB# 2000-0306, 2000-1542

UNION# 00A382, 01C036

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McNally)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Christopher Jodhan Counsel Management Board Secretariat

HEARING

March 24, May 20, July 22 & 31 and September 24, 2003.

These two grievances were prompted by the Ministry of Transportation’s decision to convert Theresa McNally’s status from regular full-time to regular part-time, with a consequent loss of vacation credits and pay for statutory holidays and a consequent reduction in the employer’s contribution to the cost of pension and health and welfare benefits.

I

Ms. McNally began working for the ministry at the Kenora Avenue office in Hamilton in 1976 and continues to be employed there. She has held the classification of senior licensing clerk OAG10 since 1989 or 1990.

Ms. McNally injured her right knee at work in 1991 and was off work from time to time because of this injury. She suffered a recurrence in December of 1994, missed some time between December and the following February, and was unable to work at all from February to September. In September, she returned to the job with a modified schedule. Her hours increased gradually until she was working eighteen hours per week—three days of six hours each. Ms. McNally injured the same knee again in September of 1996 and was off the job until February of 1997. She fell when her knee gave out in September of 1997 and did not work again until February of 1999. A medical certificate completed by the grievor’s doctor, dated January 5, 1999, characterized her medical restrictions as “permanent”. She received worker’s compensation benefits for each injury or recurrence. A letter from the Workplace Safety and Insurance Board to the employer, dated June 11, 1999, records the grievor’s entitlement to a “Future Economic Loss award”.

Whenever Ms. McNally worked between her first injury and her fall in September of 1997, she continued to perform the duties of senior licensing clerk. Upon returning to work on February 17, 1999, she was given a temporary placement as an issuing clerk. This position is classified as OAG8, but the grievor continued to receive the OAG10 rate of pay. The duration of her placement as issuing clerk was initially specified to be six months, but turned out to be almost nine. The grievor resumed the duties of senior licensing clerk on November 8, 1999.

Ms. McNally has never worked more than eighteen hours weekly since returning to work in September of 1995. Despite her reduced hours, she was treated until 1999 as a full-time employee for the purpose of vacation, statutory holidays, pension and health and welfare benefits. In November of 1999, her status was converted to that of a regular part-time employee, and she was told her entitlements would be reduced accordingly. This announcement prompted the grievance dated January 11, 2000. A second grievance was filed on October 11, 2000, shortly after the employer implemented the changes in dispute.

II

The first question to be addressed is whether the settlement of an earlier grievance, filed in the fall of 1999, resolved the issues raised by the two grievances at hand. The union contends the settlement establishes the grievor’s entitlement to all of the benefits associated with full-time employment, whereas the employer claims the settlement confirms her conversion to regular part-time status.

The earlier grievance was prompted by the extension of Ms. McNally’s temporary placement as issuing clerk. The grievor set out her objections to working in that position in a letter dated September 20, 1999 and addressed to Linda Jackson, then central region manager for drivers and vehicles. In this letter, the grievor noted that her work station as senior licensing clerk had been “ergonomically redesigned” to suit her limitations and that the duties of that position allowed her to alleviate the secondary symptoms of her injury by icing her knee and moving around. She went on to note such accommodations were not available when working as issuing clerk. The letter closes with the grievor asking to return to her previous job “with the same arrangements that were approved for me 2 years ago.” Read in the context of the entire letter, the word “arrangements” is a clear reference back to ergonomic design, icing and moving around.

When her letter of September 20 failed to produce results, Ms. McNally filed a grievance, dated October 12, 1999, indicating the settlement desired was “that the employer return me to my position as OAG10, senior licensing clerk (supervisor) for the hours of work agreed upon due to my workplace injury.” The grievor met with Ms. Jackson on October 29, 1999 to discuss the grievance. Also in attendance were Sue Jurashtchuk, then acting office manager, and Gary Buculleri, union steward. It was agreed the grievor would resume her former duties on November 8. There was no discussion at this meeting about the grievor’s status or her entitlement to the benefits now in dispute. There is conflicting evidence as to whether Ms. Jackson provided any assurances to Ms. McNally relating to matters other than her job duties. The grievor testified she sought and received an assurance that the arrangements previously in place would be maintained, but her testimony on this point was contradicted not only by Ms. Jackson but also by Ms. Jurashtchuk.

The deal struck on October 29 was recorded in the following memorandum of agreement, signed on November 1 without further discussion:

Without precedent and without prejudice the parties to the grievance agree to the following as a full and final settlement of the grievor’s grievance dated October 12, 1999:

1. The grievor will work in the position of Senior Licensing Clerk (OAG10) on a Regular Part Time basis (18 hours/week) effective November 8, 1999.

2. The employee agrees to withdraw her grievance dated October 12, 1999.

Based upon the alleged assurance by Ms. Jackson that past “arrangements” would be maintained, the union contends the settlement precludes the employer from changing the grievor’s status to regular part-time and reducing her benefit entitlements accordingly. I am not persuaded by this argument. The memorandum of settlement makes no reference to arrangements. Even if the grievor did receive an assurance about past “arrangements”, this word is highly ambiguous and could be a reference to ergonomic design, icing and moving around rather than a reference to benefit entitlement. The grievor’s recent letter used the word “arrangements” to mean the former rather than the latter. If “arrangements” were discussed on October 29, it would have been perfectly reasonable for Ms. Jackson to assume the same meaning applied.

The employer contends the words “Regular Part Time” in the settlement, capitalized as they are, acknowledge the grievor’s change in status. The problem with this argument is that it lifts these words out of context, ignoring the rest of the settlement and the events preceding its negotiation. The settlement states: “The grievor will work in the position of Senior Licensing Clerk (OAG10) on a Regular Part Time basis (18 hours/week).” The position of senior clerk and hours of work are mentioned but not status per se or benefits. Neither status nor benefits were discussed when the settlement was negotiated and neither were mentioned in the grievance or the letter preceding it. When the settlement was negotiated, the grievor was given no reason to think it would deprive her of the full-time benefits that she had enjoyed for the past four years while working eighteen hours weekly.

In my view, both parties have over-reached in their interpretation of the memorandum of settlement. It calls for no more than returning Ms. McNally to her former duties as requested in her grievance. The settlement did not in any way affect her status or her resulting entitlement to benefits. The employer did not undertake to preserve her status as a full-time employee and the grievor did not consent to having her status changed to that of a part-time employee.

III

Counsel for the union contends the employer is contractually obliged to continue providing health and welfare benefits to Ms. McNally, because she has been granted a Future Economic Loss (FEL) award by the Workplace Safety and Insurance Board. In this regard, counsel relies upon article 41.4 of the collective agreement:

Where an employee receives an award under the Workplace Safety and Insurance Act and the award applies for longer than the period set out in Article 41.2 (i.e. three (3) months), the Employer will continue subsidies for Basic Life, Long Term Income Protection, Supplementary Health and Hospital and Dental Plans for the period during which the employee is receiving the award.

Employer counsel argues the FEL payments being received by the grievor are not paid pursuant to an “award” within the meaning of article 41.4. According to this argument, the word “award” in this section refers to Loss of Earnings (LOE) benefits but not FEL benefits. I see no merit in this argument. FEL benefits are awarded as compensation for a permanent loss of earning capacity resulting from a workplace injury. LOE benefits are paid as compensation for either a temporary or permanent loss of earning capacity flowing from an injury suffered at work. As these types of benefits are two different ways of compensating for a permanent loss, there is no reason to think article 41.4 was negotiated with the intention of treating an employee in receipt of a FEL award differently than one in receipt of an LOE award.

In coming to this conclusion, I have not overlooked the arguments advanced by employer counsel about the wording of the collective agreement. One argument relating to article 41.4 itself is based upon the possibility of a FEL award being commuted to a lump sum payment. This argument does not distinguish a FEL award from an LOE award because the latter may also be commuted in certain circumstances. (As to the commutation of an LOE award, see WSIB Operational Manual, Document Number 18-03-05.) Counsel also suggested the word “award”, appearing in other paragraphs of article 41, could not sensibly be construed to mean a FEL award. This argument does not assist the employer because all of these references to an award make perfect sense if read to mean any type of WSIB award for loss of earning capacity. This is the meaning I attribute to “award” in article 41.4.

The foregoing analysis leads me to conclude the grievor is entitled to the protection afforded by article 41.4. Having come to this conclusion, I need not address the union’s alternative argument about article 42.3, because union counsel concedes the latter article does not apply to an employee entitled to the benefit of the former.

IV

As article 41.4 does not preclude the employer from reducing some of the grievor’s benefits below the level previously enjoyed by her—i.e. pension, sick leave, statutory holidays and vacation—I turn to consider whether such a reduction is prohibited by article 3 of the collective agreement, or by the Human Rights Code, as discrimination based upon disability.

I begin my analysis by noting the grievor’s complaint is about benefits forming part of the compensation package. She does not complain about being denied access to employment in general or to a particular job. In other words, this case is about compensation not participation in the world of work. In Ontario Public Service Employees Union and Ministry of Transportation, GSB File No. 0725/95, I reviewed the Ontario Court of Appeal’s treatment of compensation for disabled employees in Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital (1999), 1999 CanLII 3687 (ON CA), 169 D.L.R. (4th) 489:

The employer in that case paid the full premium for health and welfare benefits provided to active employees. For the first thirty months that disabled nurses were absent from work and in receipt of long term disability benefits, the hospital continued to pay the full cost of providing such benefits; thereafter, the employer made no contribution to health and welfare premiums. The Ontario Nurses’ Association (ONA) argued this differential treatment contravened the Code.

Holding there was no direct discrimination, Mr. Justice Rosenberg wrote on behalf of the Court:

Disabled nurses do not receive compensation because they are not providing services to their employer. It is not prohibited discrimination to distinguish for purposes of compensation between employees who are providing services and those who are not. ...

In the case presently before the court, the purpose of the employer contributions to benefit plans is to provide an additional form of compensation in exchange for work. Having chosen to provide this form of compensation, the employer could not discriminate on a prohibited basis. However, the employer could distinguish based on the reason for providing the compensation: work. On its face, discrimination would exist if the employer provided different levels of compensation for work because of handicap. Likewise, it would constitute discrimination if the employer provided different levels of compensation for not working because of handicap. But, in this context: it makes no sense to compare working employees with those not working. ...

I also do not find it helpful to attempt to isolate different elements of the compensation package such as employer contributions to premiums, vacation pay, and wages and ascribe different purposes to each so as to create a discrimination argument. They are all part of the compensation package negotiated by the parties in exchange for work by the employees. When the employee is not working, different considerations and different forms of payment may apply. For instance, employees may receive workers' compensation or long-term disability payments. ...

Leaving aside the difference between employees on workers' compensation and those on long-term disability, which is not properly before this court, the benefits provided to handicapped employees not providing work are more generous than to other employees not providing work. Therefore, there is no discrimination on a prohibited basis within the meaning of s. 5(1) of the Code. (pages 502 to 504)

Turning to indirect or constructive discrimination, governed by section 11(1) of the Code, Mr. Justice Rosenberg wrote:

In my view, it is possible to find that a neutral rule in this case has a discriminatory effect within the meaning of s. 11(1). To repeat, the neutral rule may be stated as follows: the employer contributes toward premium coverage of participating eligible nurses in the active employ of the hospital. This rule has the effect of requiring the group of employees identified by the prohibited ground of discrimination to assume the burden of paying the entire contributions for these benefits if they wish to maintain coverage. Admittedly, these employees are treated no differently than other employees on unpaid leave of absence, the difference is that these employees are adversely effected by the rule because of their disability. The issue then is whether the employers are entitled to the BFOQ [i.e. bona fide occupational requirement] justification in s. 11(1)(b) [actually s. 11(1)(a)]. In my view, they are. I reach this conclusion not because of the distinction drawn in Versa Services between compensation and participation, but rather by having regard to the nature of the accommodation required for this kind of constructive discrimination.

An example may assist in understanding the problem. Assume that an employer changes from paying its employees wages based on hours worked to paying on the basis of the number of pieces produced. Assume further that the disabled employees are simply unable to produce as many pieces as able-bodied employees and as a result their wages are reduced. Arguably, this constitutes constructive discrimination. The facially neutral standard of paying by the number of pieces produced results in a restriction on the ability of the disabled employees to earn the same wages as able-bodied employees. In accordance with s. 11(1)(a), the employer could justify the different result by showing that this standard was reasonable and bona fide in the circumstances. However, in accordance with s. 11(2), the board of inquiry or a court is only entitled to find that the standard is reasonable and bona fide if it is satisfied the needs of the group cannot be accommodated without undue hardship considering the “cost, outside sources of funding, if any, and health and safety requirements, if any.” Nevertheless, I do not read s. 11(2) as imposing upon the employer the burden of simply topping up the wages of the disabled employees. That, in my view, is not the type of accommodation contemplated by s. 11(2) and is in fact inimical to the principles underlying the Code...

Simply topping up the wages of the disabled employees and paying them as if they are not disabled is nothing more than reverse stereotyping ... Rather, it would seem to me that the employer in this hypothetical must attempt to accommodate the group. For example, the employer may provide devices and instruments that would allow the disabled employees to perform at the same level as the able bodied employees. The duty is on the employer to take all steps short of undue hardship to accommodate the need of the person discriminated against so that they can compete equally with the other employees. It is by attempting to accommodate their actual characteristics so as to bring them within the workplace environment that the employer complies with the Code. ...

It may be that this goal cannot be fully accomplished and that short of undue hardship the employer, for example, can provide technical aids that will only partly bring the disabled employees to the same level as the able-bodied employees. However, in my view, that is all the Code requires the employer to do. The employer is not required to abandon the standard (assuming it to be a BFOQ) and pay the disabled employees according to some different standard. Obviously, it may do so voluntarily, but this is not what the Code requires.

The appellant in this case does not seek any reasonable accommodation or modification of the rule for the actual characteristics of its disabled members. ...

Assuming the rule respecting employer contributions to benefit plans constitutes constructive discrimination, I am satisfied that the justification in s. 11(1)(b) [actually s. 11(1)(a)] applies. Requiring work in exchange for compensation is a reasonable and bona fide requirement. (page 512 and 515; emphasis added).

Counsel for the union relies upon the following passage from the Supreme Court of Canada’s decision in British Columbia Government and Service Employees Union V. Public Service Employee Relations Commission (1999), 1999 CanLII 652 (SCC), 176 D.L.R. (4th) 1:

Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR [bona fide occupational requirement]. An employer may justify the impugned standard by establishing on the balance of probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. (pages 24 and 25)

In that case, the grievor was dismissed from her employment because she failed a running test, and she contended her dismissal was discrimination on the grounds of sex, because the percentage of men passing the test was larger than the percentage of women. As the case was about access to employment not about wages or benefits, the Court said nothing specifically about how it’s three-fold test applies to compensation.

In my view, the Supreme Court’s decision in British Columbia Government and Service Employees Union does not put in doubt the basic point made in Orillia Soldiers Memorial Hospital—there is nothing discriminatory about requiring work in exchange for compensation. Following the Court of Appeal’s lead, I conclude requiring full-time work in exchange for some of the benefits normally offered only to full-time employees is “a reasonable and bona fide requirement.” I note article 41.4 entitles the grievor to other benefits not available to employees working part-time for reasons other than disability. To this extent, as a disabled employee, she is treated more favourably than others. Accordingly, the facts at hand do not constitute unlawful discrimination on the ground of disability.

I remain seized to address any issues arising in the implementation of this award.

Dated at Toronto this 8th day of October 2003.