GSB# 2000-0306, 2000-1542

UNION# 2000-0204-0004, 2000-0204-0003

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)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

September 7, 2005.

Decision

As a result of a workplace injury, Teresa McNally has not worked more than 18 hours weekly in recent years. The union contends she retains the status of a full-time employee and therefore is entitled to all of the benefits which normally accompany this status. According to the employer, an earlier ruling in this matter contains a final and binding determination that Ms. McNally is entitled to only some of these benefits so long as she continues to work less than full-time hours.

I

I described the factual backdrop for these grievances in a decision issued on October 16, 2003:

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

From the outset in this case, the union has relied upon article 41.4 of the collective agreement. That article states:

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.

The union initially contended this article did two things: (1) entitled the grievor to continue receiving the benefits listed therein, as if she worked full-time hours; and (2) preserved her status as a full-time employee so that she was entitled to receive all of the other benefits normally associated with full-time employment, as if she worked full-time hours. The employer’s response was that article 41.4 did not apply to the facts at hand because the grievor’s FEL award was not an “award under the Workplace Safety and Insurance Act.”

In my earlier ruling, I rejected the employer’s argument about a FEL award. I held the grievor was entitled to the specific benefits listed in article 41.4, without any diminution based upon her reduced hours, so long as she was in receipt of a FEL award.

Rejecting the union’s contention that article 41.4 preserved full-time status and all of the benefits normally associated with this status, I concluded “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” (page 6). These benefits are not listed in article 41.4. It mentions some but not all of the benefits typically provided to full-time employees—something the union’s argument entirely ignored. In my view, the only reasonable explanation for this differential treatment is that the parties to the collective agreement intended someone like the grievor, whose hours are reduced because of a workplace injury, to continue receiving the benefits specified in article 41.4, as if there had been no reduction in hours, but not to enjoy the same protection for other benefits not listed. In hindsight, I realize the rationale for my conclusion should have been more fully explained in the original decision.

III

The union now contends my ruling that the grievor is protected by article 41.4 rests upon the tacit premise that she continues to have full-time status. The gist of the argument is that the grievor must have full-time status while enjoying the protection of this article, because it applies only to employees holding this status. According to this line of argument, as a full-time employee, the grievor is entitled to all of the benefits normally associated with full-time employment.

This argument is substantively the same as the one initially advanced about article 41.4 and status. I rejected that submission in my initial decision because it would render meaningless the distinction accepted by the union and employer when they listed in this article some, but not all, of the benefits normally associated with full-time employment. The union is bound by my first decision and precluded from raising the same argument for a second time.

Issued at Toronto this 21st day of September 2005