GSB# 2010-1155

UNION# 2010-0154-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Flannery)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Michael Watters

Vice-Chair

FOR THE UNION

Mihad Fahmy Counsel Peggy Smith Barristers and Solicitors

FOR THE EMPLOYER

Caroline Cohen Senior Counsel Ministry of Government Services Labour Practice Group

HEARING

April 6, 2011

Decision

1At the outset of the hearing, the parties provided the following Agreed Statement of Facts:

1. The Grievor, Robert Flannery, is a Caseworker for the Ontario Disability Support Program, Southwest Region (Windsor Office), Operations Division, Ministry of Community and Social Services. He was hired into this role on May 1, 1989. The Grievor is 55 years old (and is eligible for pension at age 65).

2. The Grievor suffered a WSIB-approved workplace injury on December 3, 1990. The Grievor reported a reoccurrence to his original claim on June 9, 2005 and incurred intermittent lost time related to his injury from June 9, 2005, through September 10, 2009.

3. The Grievor’s claim is governed by the “pre-1992” workers compensation legislation. He is receiving a 25% NEL.

4. In September 1991, the Grievor underwent surgery as a result of his workplace injury. After resuming regular work in late 1991, the Grievor continued to perform regular work through 1992, 1993 and 1994. Through this period, there was lost time directly attributed to the workplace injury and surgery.

5. The grievor was given a zero future economic loss (FEL) award on December 18, 1994, in relation to his absence in 1991, attributed to his injury and surgery.

6. The Grievor submitted a medical note dated September 10, 2009 which stated that he “can no longer work due to chronic, severe pain in his cervical spine. He will remain off work until his assessment with the neurosurgeon Dr. Maurisutti on January 12, 2010. We will re-evaluate his status following this appointment.”

7. The grievor remained off work from September 11, 2009 to January 17, 2010. He received full pay without use of vacation credits pursuant to article 41.2 until October 27, 2009. Thereafter, pursuant to article 41.3, he accessed his vacation credits to top up the amount he was receiving from WSIB, until his return to work on January 18, 2010.

8. The Grievor returned to work on January 18, 2010 with restrictions and limitations approved by the WSIB that the program area was able to accommodate, including working 4 consecutive days per week only indefinitely. The Grievor worked 4 hours per day for the first two weeks and six hours per day for the next two weeks, before returning to a full eight hour day. In accordance with these restrictions, the Grievor did not work on the following Fridays: January 22, 29, February 5, 12, 19 and 26. He used vacation credits for these days. (The parties advised that the last two of the aforementioned dates are in dispute but that they are only relevant for purposes of remedy).

9. The employer has appealed the WSIB’s decision accepting the limitation that the grievor only work 4 consecutive days per week. The WSIB has not issued a decision on the appeal.

10. By letter dated December 18, 2010 (should read December 18, 2009) (letter attached) the WSIB advised the Grievor that “for all claims when the accident date is prior to January 1998 and a Non Economic Loss (NEL) Award is in order, a Future Economic Loss (FEL) award is then considered by the Board. This strictly relates to changes in earnings capacity as a result of the work injury.” His FEL benefit was approved by WSIB and is 90% of the difference between his pre-accident net average earnings (increased by the cost of living) and his projected net average earnings. The employee’s projected pre-accident net earnings are $592.66/week (as of December 16, 2009) and the employee’s projected net average earnings are $592.66/week. The FEL benefit is 90% of the difference less indexing requirements. Therefore, although the WSIB acknowledged that the employee experienced impairment due to his injury, there is no wage loss and the employee cannot be paid for hours missed.

11. On January 21, 2010 the Grievor advised his manager that the WSIB adjudicator confirmed the information in the December 18, 2010 letter (should read December 18, 2009) and no supplemental benefits would be paid for lost wages. The Grievor also advised his manager that the WSIB adjudicator had advised him that the calculation is not a decision and therefore could not be appealed.

12. On January 21, 2010 and February 3, 2010 the grievor’s manager verbally advised him that he should explore his WSIB appeal options and provided several contact names including the WSIB Specialist at OPSEU Corporate, Allen Jones.

13. The employer notified the grievor verbally on January 18^th, 2010 and in writing on February 16, 2010 (letter attached) that in accordance with Article 41.5 of the Collective Agreement, he would not be compensated for his inability to work the 5^th day of every week.

14. On February 26, 2010 the Grievor’s physician cleared him to return to work full time hours until the issue of payment for the 5^th day could be resolved (letter attached).

15. Also by letter dated February 16, 2010 (letter attached), the WSIB advised the grievor that where his current earnings, working four days per week, do not result in a wage loss, he will not receive benefits.

16. The employee originally filed three grievances in relation to the issues above. One of the grievances, filed February 19, 2010, was resolved following Stage Two. There are two grievances proceeding to the Grievance Settlement Board.

17. Other than the issue of payment for his 5^th shift, which is the subject of Grievance #1 dated February 17, 2010, there were no issues regarding his return to work in January 2010.

18. In grievance #1: the Grievor alleges that he should be compensated by the Employer for his inability to work every 5^th workday. The Grievor alleges that he is entitled to use STS credits on these days. The Employer’s position is that Article 41.5 of the OPSEU Collective Agreement prohibits the payment of STSP in these circumstances.

2The issue between the parties, simply stated, is whether the grievor is entitled to use the Short Term Sickness Plan (STSP), and be compensated thereunder, in respect of his inability to work every fifth (5^th) workday. The parties asked that I first determine whether article 41.5 of the collective agreement precludes such entitlement and to defer until the next hearing date any consideration as to the applicability of the Human Rights Code. In accordance with such request, this Decision is focused solely on the question of whether the grievor can access the STSP under the provisions of the collective agreement.

3The relevant provisions of the collective agreement read:

ARTICLE 41 – WORKPLACE SAFETY AND INSURANCE

41.1 Where an employee is absent by reason of an injury or an occupational disease for which a claim is made under the Workplace Safety and Insurance Act, his or her salary shall continue to be paid for a period not exceeding thirty (30) days. If an award is not made, any payments made under the foregoing provisions in excess of that to which he or she is entitled under Articles 44.1 and 44.6 (Short Term Sickness Plan) shall be an amount owing by the employee to the Employer.

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) consecutive 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.

41.4 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 the Dental Plans for the period during which the employee is receiving the award. The Employer shall continue to make the Employer’s pension contributions unless the employee gives the Employer a written notice that the employee does not intend to pay the employee’s pension contributions.

41.5 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, the employee shall not be entitled to a leave of absence with pay under Article 44 (Short Term Sickness Plan) as an option following the expiry of the application of Article 41.2.

ARTICLE 44 – SHORT TERM SICKNESS PLAN

44.1 An employee who is unable to attend to his or her duties due to sickness or injury is entitled to leave of absence with pay as follows:

(a) with regular salary for the first six (6) working days of absence,

(b) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence, in each calendar year.

4It is the Union’s position that article 41.5 does not apply to an employee, like the instant grievor, who has returned to active employment and whose absences are part of a permanent workplace accommodation. Counsel suggested, rather, that it applies to situations such as the following:

i. an employee who has had consecutive absences after an injury and who has exhausted the article 41.2 entitlements, but is still not fit to return to work;

ii. an employee who has had intermittent absences and who has exhausted the article 41.2 entitlements, but is still not fit to return to work; and possibly,

iii. an employee who has returned to work and has had occasional or intermittent absences related to a flare-up of an initial injury, but who has exhausted the article 41.2 entitlements.

On her analysis, all of the above situations are distinct from this case, as the grievor here has returned to work under a modified work plan which is expected to be permanent. Counsel submitted that, in the circumstances, the grievor has “moved into a different regime” and, more specifically, from the “WSIB world to the accommodation world.” Counsel argued that it is irrelevant that the WSIB has accepted the restrictions identified by the grievor’s physician. She noted that the Employer, in conjunction with the grievor, is now bound to implement same.

5Counsel advanced the further arguments in support of the Union’s position that article 41.5 is inapplicable in this instance:

i. In this case, the grievor’s absences are regular and predictable, ie. the fifth day of every work week. Counsel asserted that article 41 contemplates more sporadic absences which are related to a reoccurrence of a WSIB approved injury;

ii. The words “leave of absence” in article 41.5 implies an extension of the employee’s time away from work, much like the grievor’s situation post October 27, 2009. On counsel’s interpretation, the words “leave of absence” would not capture a person actively at work under an accommodation;

iii. Counsel noted that the opening language of articles 41.2 and 41.5 is identical as both read: “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….”. On her reading, this language envisages an absence closely connected to the initial injury and that is in close proximity thereto in a temporal sense. Counsel argued that the absences here in issue are not by reason of the initial injury but, instead, are the result of a permanent disability which must be accommodated. She further observed that the WSIB approved injury occurred in 1990, over twenty (20) years ago; and

iv. Counsel submitted that if the parties had intended to preclude a person in the grievor’s circumstances from accessing the STSP, then much clearer language would have been used to express such intent, particularly given the significant impact article 41.5 could potentially have on employees suffering from a disability. For this reason, I was asked to read article 41.5 narrowly and to exclude its applicability to persons on a workplace accommodation.

6For the above reasons, the Union asks that I find that article 41.5 does not preclude this grievor’s access to the STSP.

7In response, counsel for the Employer referenced the grievor’s lengthy involvement with the WSIB following his initial workplace injury in 1990. More specifically, she observed that such injury, his subsequent absences both consecutive and intermittent, and the recent restrictions established by the grievor’s physician have all been accepted by the WSIB. Indeed, counsel described the restrictions as a “WSIB modified work program”. Counsel further referenced the fact that the grievor has received a FEL award from the WSIB, albeit on a sustainability basis only given that his projected net average earnings exceed the pre-accident net average earnings. Simply put, it is the position of the Employer that the WSIB provides a complete statutory regime which sets out the compensation entitlements of persons who suffer a work related injury or illness. Counsel submitted that a person, such as the grievor, is restricted to those entitlements, subject only to the additional benefits negotiated by the parties and contained within article 41 of the collective agreement.

8Counsel reviewed the provisions of article 41 and provided her assessment as to their purpose and function in respect of employees who have claimed and/or received WSIB benefits. In this regard, she made the following observations: article 41.2 contemplates intermittent absences, similar to those experienced by the grievor under his modified workplan; article 41.3 provides for the use of accumulated credits to top up the WSIB award to the level of the employee’s regular salary; and that article 41.4 sets out the Employer’s on-going obligation to continue subsidies for the benefits identified and to make pension contributions. Counsel submitted that these provisions comprise the totality of the grievor’s entitlement under the collective agreement. On her reading, article 41.5 clearly and unambiguously states that an employee absent from work due to injury or occupational disease, in respect of which a WSIB award has been made, shall not be entitled to a leave of absence under the STSP following the expiry of the application of article 41.2. Counsel argued that this express language makes it clear that such absences are to be treated under the WSIB regime, rather than by recourse to article 44. Put another way, she submitted that the grievor is not entitled to access the STSP in respect of a WSIB absence, such as the ones occurring on the fifth day of each work week. Counsel further asked that I provide a narrow interpretation of article 41.5 consistent with her analysis of the relationship between the statutory and the collective agreement schemes.

9Counsel’s response to the Union’s submissions may be summarized as follows:

i. While the grievor cannot be compensated for the fifth day through the STSP, he may use accumulated credits to top-up his salary;

ii. Counsel asserted that the grievor’s situation is indistinguishable from the third example cited by Union counsel to which article 41.5 might apply. Additionally, she submitted that predictability of the absences is not determinative and that, in any event, the predictability existing here has been recognized by the WSIB;

iii. Article 41.5 speaks of “leave of absence” because that is the language used in article 44 to describe sick leave Counsel argued that one (1) day of absence under the STSP would represent a leave of absence under the plan; and

iv. The identical language of articles 41.2 and 41.5, relied on by the Union in its argument, fully captures the circumstances of this grievor. Counsel emphasized that the WSIB has accepted that his permanent disability was caused by a workplace injury. She noted that such injury has led directly to the absences here being considered.

10For the above reasons, the Employer asks that I dismiss this aspect of the grievance on the basis of a finding that article 41.5 precludes the grievor from accessing the STSP in all of the circumstances of this case. I was referred to the following authorities in support of this position: OPSEU (McNally) and Ministry of Transportation, GSB File No. 2000-0306, 2000-1542, October 16, 2003 (Brown); OPSEU (Hauth) and Ministry of the Solicitor General and Correctional Services, GSB File No. 1141-99, 1145-99, September 26, 2000 (Mikus); and OPSEU (Monk) and Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Services, GSB File No. 1995-1694, April 29, 2010 (Gray).

11On my view of the facts, as stated, the grievor’s absences on the fifth day of the work week are by reason of an injury for which an award has been made under the Workplace Safety and Insurance Act. Unfortunately for the grievor, the injury first sustained in late 1990 has had long standing effects, including both intermittent and consecutive absences and, most recently, has resulted in the need for a permanent workplace accommodation. I accept the Employer’s submission that the grievor’s situation is captured by the opening language of article 41.5 in the sense that all of the absences, and the present need for accommodation, result directly from the initial injury and its aftermath. In this regard, I have not been persuaded that article 41.5 is intended to only apply to absences in close proximity to the date of injury for which WSIB is approved. It is also apparent that WSIB awards have been made relating to the grievor’s workplace injury. The Agreed Statement of Facts reference both the NEL and FEL awards. Lastly, it is not in dispute that the grievor is a person whose article 41.2 entitlements have expired. On the facts, that occurred on October 27, 2009.

12I do not see anything in the contractual language which would serve to exclude regular and predictable, in contrast to sporadic, absences from the application of article 41.5. Additionally, I do not think that anything turns on the use of the phrase “leave of absence” in that article. The same wording is found in article 44.1 to describe an absence eligible for coverage under the STSP. On a plain reading of article 44.1, a leave of absence with pay could be of short duration measured in terms of days or for that matter, as here, a single day in a work week. In the final analysis, I cannot agree that the inclusion of the words “leave of absence” in article 41.5 contemplates an extension of time off from work and that the provision has no application to an employee who has returned to work with the permanent requirement for a regular day off for purposes of an accommodation. If that was the parties initial intent, I consider it more likely than not that more precise language would have been used to communicate such intent. This is particularly so, given that article 41 in its entirety is designed to itemize the additional benefits an employee with a workplace injury is entitled to receive over and above those provided by the WSIB.

13After reviewing the Agreed Statement of Facts, the submissions of the parties and the decisions cited, I conclude that the circumstances of this grievor fall squarely within article 41.5. As a consequence, he is not entitled to resort to the STSP under article 44. This aspect of the grievance is accordingly dismissed.