Ontario Public Service Employees Union (Kellar) v. The Crown in Right of Ontario (Ministry of Health and Long-Term Care), 2011 CanLII 41859

GSB#2009-0969

UNION#2009-0449-0003

Under

Before

BETWEEN

Ontario Public Service Employees Union (Kellar)

Union

and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Richard L. Jackson

Vice-Chair

Jodi Martin Paliare Roland Rosenberg Rothstein LLP Counsel

Kylie Humphries Ministry of Health and Long-Term Care Employee Relations Advisor

November 4, 2010.

1This decision arises out of a dispute as to the proper interpretation of a Memorandum of Agreement that resulted from a day of mediated negotiation between the Ministry of Health and Long Term Care and OPSEU, on November 4, 2010. This was the third day of mediation between the parties concerning the grievances of Ms. Brenda Kellar. Given that the issue in dispute – whether or not the grievor’s sick bank should have been recharged on January 1, 2011– is not explicitly mentioned in the memorandum of agreement, it is necessary to revert to the extrinsic evidence of what actually transpired during the mediation.

Background

2Ms. Kellar’s grievances concerned certain alleged circumstances at the work location of her home position, as a result of which she had spent some considerable time off on sick leave. As a result of a mediated negotiation on February 17, 2010, the grievor was placed in a temporary assignment elsewhere at her regular level of pay, an assignment that would end on October 15, 2010. In a second day of mediation, April 22, 2010, the parties agreed to write to the grievor’s physician in order to determine if, and under what conditions, the grievor might return to her home position. Unfortunately, however, the answers did not provide sufficient clarity, thus necessitating a third day of mediation on November 4 to deal with this problem. Early in the process on this day, the parties agreed to an independent medical examination (I.M.E.). Certain other issues arose during this mediation, however.

3The grievor’s home position is one that requires certification in the form of an “Entry-to-Practice” course, and the grievor had been away from her home position long enough that, before she could return to her regular duties, she would first have to be recertified through this program. The parties agreed that the grievor would be sent on the next Entry-to-Practice course, which was starting on November 15 and continuing through to the end of January; they also agreed that she would be paid her full salary during that time. That meant, however, that between October 15, the end of her temporary assignment, and November 15, the start of the course, she would be back on sick leave.

4The Union requested that the Employer top up the grievor’s 75% compensation under Article 44 during this period in order to provide her full salary, but the Employer refused. Part of this discussion also focussed on the grievor’s status during the two-week break that the Entry-to-Practice course took over the Christmas period. The Union requested that she continue on her full salary, but the Employer refused.

5During this discussion, and in the context of the Union’s expressed concern over the grievor’s running out of sick leave, the representative of the Employer made the observation that, since the grievor would be on a training course that spanned the Christmas break period, she would be considered at work and, therefore, her sick bank would be reloaded.

6Counsel for the Union then asked if the Employer would be willing to leave these issues – top-up to 100% salary during the October 15-November 15 and her treatment over the Christmas break --- to be decided by me. The Employer would not agree and, after some more discussion, then put what amounted to a final offer to the Union: (1) the parties would proceed with an independent medical examination; (2) the grievor would go on the recertification course at full pay and expenses; (3) the grievor would receive no top-up of sick leave used during the October 15-November 15 period, and would be put back on sick leave during the Christmas break period. This was agreed in principle, with a written Memorandum of Settlement to be sent by the Employer representative to Counsel for the Union the next day, November 5. With two small changes, the agreement was signed.

7The grievor’s sick bank was not reloaded as of the beginning of the new year, and that is the issue before me.

Arguments

8The Employer takes the position that, because she was on sick leave on December 31 and January 3, under Articles 44.3 and 44.4 of the collective agreement, she was not entitled to have her sick bank topped up.

9The Union argues that, under the particular circumstances of this case, those articles do not apply but, even if they did, the Employer should be estopped from relying on the strict terms of Article 44 because of the statement of the Employer’s representative during the mediation, on which the Union relied in agreeing to the Employer’s offer.

Decision

10In the particular circumstances of this case, the strict terms of Article 44 should not apply. The only reason the grievor was on sick leave on both December 31 and January 3 is because the Entry-to-Practice training course that she was taking took a two-week break over the Christmas period that happened to include those two dates. Had it not done so, or had the course break ended before December 31 or even before January 3, then she would have been “at work” and, thus, entitled to the reloading of her sick-leave bank. In the particular context of this situation, being on sick leave during the two-week break in the course – and, therefore, on December 31 and January 3 – was a sort of contrivance, a means to an end – a convenient definition of the grievor’s status that would enable her to have some compensation over the Christmas break, given the Employer’s refusal to continue her regular salary. It was, in effect, the logical and natural default position for both parties in face of the Employer’s refusal to continue to pay her at her regular rate over the break. For purposes of the Entry-to-Practice course, she was not sick; she was available, willing, and able to work. Had it not been for the enforced break, there would have been no issue to discuss.

11These parties have worked extremely diligently, constructively, and in good faith through three days of mediation (and well beyond that on their own) in order to resolve these grievances in a creative, sensible, and helpful way for both the grievor and the Employer. To deny the grievor a replenishment of her sick-leave bank because the Entry-to-Practice course took a two-week break that happened to include these crucial dates is to take a much narrower and more legalistic interpretation of the situation than the discussion on November 4 reflects and than what I am convinced these parties ever intended. Had such an outcome been recognized at the time, the parties would have devised another approach – if necessary by the simple expedient of the grievor’s going on leave without pay during all or part of the break. Given the nature and uncertainties of this case, it was entirely obvious and predictable that the grievor might well need to continue on sick leave for some, possibly considerable, time in 2011, as the parties worked to deal with the results of the I.M.E, whatever they turned out to be. Indeed, that seems to have been exactly what has happened.

12For all practical purposes, and in the particular context of the facts of this case, I consider the grievor to have been “at work” from November 15 though the end of January, and I am convinced that that was also the parties’ sense of the situation, as reflected in the statement of the Employer’s representative to that effect. Accordingly, then, the grievor is entitled to have her sick leave bank replenished, and it is so ordered.

13In view of the foregoing, it is unnecessary for me to deal with the Union’s estoppel argument.

Dated at Toronto this 13th day of June 2011.