GSB#2014-3627, 2016-2254

UNION#2014-0108-0072, 2017-0108-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Van Zeggelaar)

Union

• and -

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

Employer

BEFORE

David R. Williamson

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 17, 2015; March 23, July 7, 2017

Decision

1On December 5, 2014, Ms. Susan Van Zeggelaar was terminated from her position as a Correctional Officer at the Elgin-Middlesex Detention Centre in London, Ontario, for reasons of excessive absenteeism. This dismissal was grieved and the parties appeared before the Board on June 17, 2015, at which time they were unsuccessful in their attempt to negotiate a resolution of the grievance. Subsequently, in January 2016, the parties resolved the grievance by way of entering into a Memorandum of Settlement that provided Ms. Van Zeggelaar with a final opportunity to demonstrate she could maintain attendance at work on a regular basis. As part of this settlement the parties agreed the undersigned Arbitrator was seized with any issues of interpretation or implementation relating to the Memorandum of Settlement.

2By the terms of the Memorandum of Settlement, Ms. Van Zeggelaar agreed to not be absent for more than ten of her scheduled shifts or irregularly scheduled shifts during the contract for any reason including but not limited to for reason of any illness whatsoever, including those which may amount to a disability. Ms. Van Zeggelaar returned to work on February 8, 2016, under a twelve month fixed term contract that was ended by the Employer on January 12, 2017, following an Allegation Meeting held December 15, 2016, at which time the Employer notified her that she had been absent for fourteen of the shifts she had been scheduled to work. By way of the Agreed Statement of Facts, at this Allegation Meeting Ms. Van Zeggelaar did not deny she had been absent as set out by the Employer and stated that apart from those instances where she herself was sick that most of the absences were unavoidable because she had to care for a son who suffers from migraine headaches which incapacitated him, and that she could not arrange for others to care for him. The parties also agree that Ms. Van Zeggelaar stated at the Allegation Meeting that she believed she could decline or cancel shifts for which she had been scheduled provided she pick up other shifts to work.

3On January 12, 2017 Ms. Van Zeggelaar filed a grievance that the Employer had breached the terms of the Memorandum of Settlement and unjustly terminated her contract. This grievance subsequently came to be heard at arbitration at which time the parties joined issue on the matter of whether a number of Ms. Van Zeggelaar’s absences were afforded the protection of the emergency leave provisions of s.50 of the Employment Standards Act such that the remaining number of absences thereby fell below ten and with Ms. Van Zeggelaar thus maintaining compliance with the terms of the Memorandum of Settlement.

4Central to the agreement reached by the parties are the following provisions of the Memorandum of Settlement:

1. The Employer agrees to hire the employee on a 12-month fixed-term contract (hereinafter ‘contract’) for a CO2 position at the top-rate effective the first Monday following the execution of this Memorandum of Settlement by the last party to execute the Memorandum. ……….

2. The Employee agrees that she will not be absent for her scheduled shifts for more than 10 shifts during the contract for any reason including but not limited to for reason of any illness whatsoever, including those which may amount to a disability. Without any admission on the part of the Employer that its duty to accommodate an employee with a disability includes an obligation to tolerate absences, the Parties expressly agree that in the circumstances set out in this Memorandum of Settlement, that requiring the Employer to accept any absences in excess of 10 would represent an undue hardship.

3. If the Employee does comply with paragraph 4 of this Memorandum of Settlement, the Parties agree that on the conclusion of the contract referred to in paragraph 1:

I. The Employer will reinstate the Employee with no loss of seniority to February 8, 2016, the date of the start of the fixed term contract.

9. The Parties agree that if the Employee does not comply with paragraph 4 of this Memorandum of Settlement, then this Memorandum of Settlement will fully and finally resolve her termination and her contract will cease without recourse to any forum except as identified in paragraph 10 below.

10. The sole issue that can be grieved to the Grievance Settlement Board is whether the Employee complied with paragraph 4. If the Grievance Settlement Board finds she did comply the Employee shall be reinstated to complete the outstanding portion of her contract and this Memorandum of Settlement will remain in effect.

11. This written Memorandum of Settlement represents the complete settlement between the Parties in relation to the above-noted grievance and any related matters. The Parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this written settlement.

13 The Employee agrees that by signing this Memorandum of Settlement, she understands it, and that she has signed it having been fully and fairly represented by Union Counsel.

14. The Parties agree that Vice-Chair Williamson is seized with any issues of interpretation and/or implementations relating to this Memorandum of Settlement.

5At the arbitration hearing held in relation to this grievance the parties entered into evidence the Memorandum of Settlement, Ms. Van Zeggelaar’s grievance, plus an Agreed Statement of Facts including particulars of each of Ms. Van Zeggelaar’s absences from work. Viva voce evidence was also given by Ms. Van Zeggelaar. The parties then made their submissions based on this evidence and the provisions of the collective agreement, the Labour Relations Act, 1995, and the Employment Standards Act, 2000.

6The Agreed Statement of Facts discloses that the Grievor was absent from work for fourteen of her scheduled shifts between March 30, 2016, and December 4, 2016. Ms. Van Zeggelaar did not work seven of these scheduled shifts on account of personal sickness, and two shifts were declined for other reasons including a family emergency wherein her brother-in-law entered a hospice on November 20th and died on December 6th. The other five scheduled shifts that Ms. Zeggelaar declined and did not work were, by the Agreed Statement of Facts, for child care issues on the 2016 dates of March 30, May 2, May 30, November 8, and November 21. For each of these five shifts declined Ms. Van Zeggelaar called in to work ahead of the start of the shift to advise she would not be able to work the scheduled shift. The parties agree that for seven of the weeks in which Ms. Van Zeggelaar cancelled a shift due to either illness or child care issues she picked up an additional shift to work later in that week.

7It is noted in the agreed Statement of Facts that Ms. Van Zeggelaar failed to attend at the workplace for the 8:00 a.m. start of her scheduled shift on August 11, 2016, following which a representative of the Employer telephoned her and left a message. Sometime later that morning Ms. Van Zeggelaar attended at the workplace but shortly afterwards advised the Employer that she was too sick to complete her shift and was given permission to return home. The Employer recorded her absence for the balance of this shift after 10:00 a.m. as due to sickness.

8The Agreed Statement of Facts further discloses that Ms. Van Zeggelaar volunteered to work Christmas Eve and Christmas Day and New Year’s Eve and New Year’s Day. She was paid time and a half for these shifts. The Grievor was not advised or warned by the Employer at any time that she was close to exceeding her allotted number of sick days, nor did she make any inquiries of the Employer in this regard.

9Subsequent to the Allegation Meeting held December 15, 2016, Rain Loftus, a Union Representative, provided the Employer with a letter dated January 6, 2017 by the Nurse Manager of a hospice stating that the Employee’s brother-in-law entered the hospice on November 20, 2016 and died on December 6, 2016. Rain Loftus also provided the employer with a letter from Dr. Naghiu dated January 9, 2017 in which the doctor relates that the Employee had advised him that she had missed days due to her brother-in-law’s terminal illness and that she is known to him as suffering from depression and an anxiety disorder and follows with him regularly. Following the death of her brother-in-law Ms. Van Zeggelaar was granted bereavement leave that the Employer has not included in the absences.

10On January 12, 2017 Ms. Van Zeggelaar’s fixed term contract was terminated effective immediately. The letter of termination signed by the Superintendent of the Elgin-Middlesex Detention Centre notes that she considered but rejected the explanations provided by the Employee at the Allegation Meeting, and further notes that she considered the materials provided by Rain Loftus. Also on January 12, 2017, Ms. Van Zeggelaar grieved her dismissal and alleged the Employer had breached the Memorandum of Settlement and unjustly terminated her contract.

11Absent a resolution of this matter by the parties, the grievance proceeded to be heard at the instant arbitration. Entered into evidence at this time in addition to the Agreed Statement of Facts and the Memorandum of Settlement was the viva voce evidence of Ms. Van Zeggelaar. It is the Grievor’s testimony that her eight year old son suffers from severe migraines that come on quickly, and cause him to vomit, cry, and bang his head on the floor such that she is the only one able to handle him when a migraine occurs and that she is not able to find someone else to take care of him in these circumstances. Ms. Van Zeggelaar testified that her son has been prescribed medication for these migraines by the family’s physician, and that her doctor is keeping a record of these migraines. She said that five of her absences from work are due to her son’s migraines with such being corroborated in her physician’s letter to her Employer.

12Ms. Van Zeggelaar testified as to the circumstances pertaining to one of her absences due to sickness, namely as to why she was unable to work her scheduled shift on October 23rd commencing at 7:00 a.m. It is her evidence that she was in great pain and had not recovered from a medical procedure that had taken place on October 21st and 22nd, and with these being medical dates she had identified to the Employer some three weeks in advance.

13It is also the evidence of Ms. Van Zeggelaar that from her past experience in being employed on a fixed term contract she believed she had ten sick days to use during the year, and that if she cancelled a scheduled shift during a week she would be in compliance with the contract so long as she worked another shift that week that resulted in her working a forty hour work week. In cross-examination Ms. Van Zeggelaar agreed that that there is no reference in the Memorandum of Settlement to her being required to work a forty-hour work week, and that at no point had her Union legal counsel said or written to her to say that she could cancel or decline shifts provided that she picked up another shift that week in order to work forty hours in the week.

14It is the further testimony of Ms. Van Zeggelaar that absences on account of her son’s migraines were unavoidable and that had she recognized, or been warned, that she could only turn down ten shifts she would have used these for when her son was ill and if necessary come to work when she herself was ill. In cross-examination the Grievor acknowledged that nowhere in the Memorandum of Settlement does it require the Employer to warn her in any way or advise her of the running total of her work absences, and agreed that she could have accessed this information for herself by way of computer screen shots however she thought her attendance was so good that she had no reason to think of doing this.

15Relevant provisions of the Employment Standards Act, 2000, include:

PART III: HOW THIS ACT APPLIES

s. 3. (1) Who Act applies to. – Subject to subsections (2) to (5), the employment standards set out in this Act apply with respect to an employee and his or her employer if

(a) the employees work is to be performed in Ontario or …;

s. 3. (4) Exception, Crown employees. – Only the following provisions of this Act apply with respect to an employee and his or her employer if the employer is the Crown, a Crown agency or an authority, board, commission or corporation all of whose members are appointed by the Crown:

5. Part XIV (Leaves of Absence)

6. Part XVIII (Reprisal), except for subclause 74(1)(a)(vii) and clause 74(1)(b).

s.5. (1) No contracting out. – Subject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.

s.5. (2) Greater contractual or statutory right. – If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.

PART XIV: LEAVES OF ABSENCE

PERSONAL EMERGENCY LEAVE

s.50. (1) Emergency leave. – An employee whose employer regularly employs 50 or more employees is entitled to a leave of absence without pay because of any of the following:

1. A personal illness, injury or medical emergency.

2. The death, illness, injury or medical emergency of an individual described in subsection (2).

3. An urgent matter that concerns an individual described in subsection (2).

s.50. (2) Same – Paragraphs 2 and 3 of subsection (1) apply with respect to the following individuals:

1. The employee’s spouse.

2. A parent, step-parent or foster parent of the employee or the employee’s spouse.

3. A child, step-child or foster child of the employee or the employee’s spouse.

4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.

5. The spouse of the child of the employee.

6. The employee’s brother or sister.

7. A relative of the employee who is dependent on the employee for care or assistance.

s.50.(3) Advising employer – An employee who wishes to take leave under this section shall advise his or her employer that he or she will be doing so.

s.50.(4) Same – If the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it.

s.50.(5) Limit. – An employee is entitled to take a total of 10 days’ leave under this section in each calendar year.

PART XVIII: REPRISAL

s.74.(1) Prohibition. – No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,

(a) because the employee,

(i) asks the employer to comply with this Act and the regulations,

(ii) makes enquiries about his or her rights under the Act,

(iii) files a complaint with the Ministry under this Act,

(iv) exercises or attempts to exercise a right under this Act,

(v) gives information to an employment standards officer,

(vi) testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this Act,

(vii) participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business Holidays Act,

(viii) is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV; or …..

16Relevant provisions of the Labour Relations Act, 1995 include:

s. 48(12) Powers of arbitrators, chair of arbitration boards, and arbitration boards. – An arbitrator or the chair of an arbitration board, as the case may be, has power,

(j) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.

17Relevant leave provisions of the collective agreement as they pertain to fixed-term employees include:

ARTICLE 24 – LEAVE WITHOUT PAY

24.1 An employee may request a leave of absence without pay and without accumulation of credits. A Deputy Minister shall not unreasonably deny such requests.

24.2 Family Medical Leave and Personal Emergency Leave will be granted to employees in accordance with the Employee Standards Act, 2000, as may be amended.

ARTICLE 31A – FIXED TERM EMPLOYEES OTHER THAN SEASONAL, STUDENT AND GO TEMP EMPLOYEES (FXT)

31A.8 ATTENDANCE CREDITS AND SICK LEAVE

31A.8.1 Employees who work thirty-six and one quarter (36¼) or forty (40) hours per week shall earn attendance credits of one and one quarter (1¼) days for each calendar month of full attendance or for each calendar month of leave of absence granted under article 31A.9 (Pregnancy and Parental Leave). Attendance credits may be used for protection purposes only in the event that an employee is unable to attend to his or her official duties by reason of illness or injury. ……….……For clarity, where a fixed-term employee uses an attendance credit the hours covered by that credit will be counted as ‘attendance’ for the purpose of this article.

31A.10 BEREAVEMENT LEAVE

31A.10.1 A fixed-term employee who would otherwise have been at work shall be allowed up to three (3) days leave of absence with pay in the event of the death of his or her spouse, mother, father, mother-in-law, father-in-law, son, daughter, brother, sister, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, ward, guardian, stepson, step-daughter, stepmother. stepfather, step-grandparent, step-grandchild or same-sex spouse.

31A.10.2 An employee who would otherwise have been at work shall be allowed one (1) day leave of absence without pay in the event of the death and to attend the funeral of his or her aunt, uncle, niece, or nephew.

31A.10.3 It is understood that a leave of absence under Articles 31A.10.2 and 48.3 will be counted as ‘attendance’ for the purposes of Article 31A.8.

ARTICLE 48 – BEREAVEMENT LEAVE

48.1 A fixed-term employee who would otherwise have been at work shall be allowed up to three (3) days leave of absence with pay in the event of the death of his or her spouse, mother, father, mother-in-law, father-in-law, son, daughter, brother, sister, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, ward, guardian, stepson, step-daughter, stepmother. stepfather, step-grandparent, step-grandchild, or same-sex spouse.

48.2 An employee who would otherwise have been at work shall be allowed one (1) day leave of absence without pay in the event of the death and to attend the funeral of his or her aunt, uncle, niece, or nephew.

48.3 In addition to the foregoing, an employee shall be allowed up to two (2) days’ leave of absence without pay to attend the funeral of a relative listed in Articles 48.1 and 48.2 above if the location of the funeral is greater than 800 kilometres (800 km) from the employee’s residence.

ARTICLE 49 – SPECIAL AND COMPASSIONATE LEAVE

49.1 A Deputy Minister or his or her designee may grant an employee leave of absence with pay for not more than three (3) days in a year upon special or compassionate grounds.

49.2 The granting of leave under this article shall not be dependent upon or charged against accumulated credits.

18It is the position of the Union that Ms. Van Zeggelaar’s employment has been improperly terminated and in a manner contrary to the terms of the Memorandum of Settlement. The Union submits that, aside from certain specified exclusions, all employees of an employer in Ontario that employs more than fifty people are covered by the Employment Standards Act, 2000 and that the government of Ontario is not one of those employers that are excluded from the provisions of the Act. As such, the Grievor is covered by the terms of the Act and is allowed by s.50 to have up to ten emergency leave days without pay for, inter alia, personal illness, injury, or medical emergency, or an urgent matter that concerns a child of the employee or the employee’s spouse. Further, the Union submits that by s.5.1 of the Act no employer or employee, or their agents, may contract out of or waive an employment standard and that any such contracting out or waiver is void.

19Accordingly, submits the Union, Ms. Van Zeggelaar is covered by the terms of the Employment Standards Act and is entitled to take up to ten days of emergency leave in a calendar year and that, further, by the terms of s.74.1 of the Act no employer shall dismiss or otherwise threaten to do so because an employee takes a leave or attempts to exercise a right under the Act. As such, argues the Union, without the five days of leave of absence from work for reasons of emergency child care Ms. Van Zeggelaar’s absences from work total nine and are insufficient to trigger the ending of her employment under the terms of the Memorandum of Settlement. Further, the Employer is precluded by the provisions of s.74.1 of the Act from dismissing or taking any other reprisal against the Grievor for exercising a right provided to her under the Act. It is also the submission of the Union that Ms. Van Zeggelaar has met the spirit of the agreement by dramatically improving her attendance and that this was the purpose of the Memorandum of Settlement. The Union notes further that Ms. Van Zeggelaar has reached out to pick up additional shifts to work in weeks where she had been unable to work a particular scheduled shift, with the result that she has worked a full work week in most instances, and that she has not received recognition or any credit in relation to her attendance record for so doing.

20As such, the Union submits that the five days taken by Ms. Van Zeggelaar are not absences under the Memorandum of Settlement and that she has not triggered the terms under which she may be terminated from employment, and nor can she be dismissed or disciplined for taking emergency leave to attend to her son. The Union seeks that Ms. Van Zeggelaar be returned to work to complete the balance of her term of employment under the provisions of the Memorandum of Settlement and that she be made whole with interest.

21In support of its position and submissions the Union made reference to the following arbitral authorities: Re Toronto Catholic District School Board and Ontario English Catholic Teachers’ Association (Toronto Elementary Catholic Teachers) (2000), 2000 CanLII 50113 (ON LA), 88 L.A.C. (4th) 47 (Marcotte); Re Ontario (Management Board Secretariat) and A.M.A.P.C.E.O. (2005), Grievance S.B., 2004-2081, (Petryshen); Re Natrel Inc. v. Teamsters, Local 647 (2004), 76 C.L.A.S. 230 (Swan); Re Revera Retirement L.P. and Service Employees’ International Union, Local 1 Canada (2013), CanLII 9071 (Hayes); to s.48(12)(j) of the Labour Relations Act, 1995, as amended; and to the Employment Standards Act, 2000, as amended, and in particular sections 3.(1), 3.(4), 5.(1), 5.(2), 50.(1), 50.(2), 50.(5), and 74.(1) of the Act.

22The Employer, as may be expected, argues differently. It is the position of the Employer that the terms of the Memorandum of Settlement are clear and unambiguous and submits that the plain and ordinary meaning of the agreement is that all absences from work are included and that if these come to be more than ten then the grievor’s termination of employment ensues. In relation to the Employment Standards Act the Employer argues that this Act provides a minimum standard below which one cannot go, but that by s.5(2) of the Act parties are free to negotiate terms that are above the minimum and that they have done so in the instant matter in relation to matters pertaining to Leaves of Absence. It is the submission of the Employer that by Art. 24(2) of the collective agreement, Family Medical Leave and Personal Emergency Leave is granted to fixed term employees in accordance with the Employment Standards Act, plus the collective agreement also provides attendance credits and bereavement leave for fixed term employees. As such, the Employer submits, the collective agreement provisions are clearly superior and thus replace the requirements that are set out in the Employment Standards Act. Accordingly, the Employer argues that all of the Grievor’s absences from work are captured by the terms of the Memorandum of Settlement, and that as the number of these absences exceed ten submits that the dismissal of Ms. Van Zeggelaar be upheld.

23In support of its position and submission the Employer made reference to the following arbitral authorities: Re OPSEU (Fraser) v. Ontario (Ministry of Community Safety and Correctional Services) (2011), Grievance S.B. GSB # 2011-0644 (Keller); Re Standard Products (Canada) Ltd. and C.A.W., Local 4451 (1996), 1996 CanLII 20312 (ON LA), 56 L.A.C. (4th) 88 (Davie); Re O.P.S.E.U. v. Ontario (Liquor Control Board) (2011), 211 L.A.C. (4th) 197 (Brown); Re O.P.S.E.U. (Hinchcliffe) v. Ontario (Ministry of Community and Social Services) (2016), Grievance S.B. GSB # 2012-1207 (Johnston); Re Abitibi Consolidated Co. of Canada v. I.A.M. & A.W. Lodge 721 (2006), 2006 CanLII 93287 (ON LA), 151 L.A.C. (4th) 229 (Jesin); Re Siemens VDO Automotive Inc. v. CAW-Canada, Local 1941 (2005), 82 C.L.A.S. 320 (Brent); Re Middlesex London Emergency Medical Services Authority v. O.P.S.E.U., Local 147 (2015), 261 L.A.C. (4th) 390 (Stout); and to the Leave provisions for Fixed Term Employees in the collective agreement between the parties, specifically Art. 24.2, Art. 31A.8.1, Art. 31A.10.1, Art. 31A.16.1, Art. 48.1, Art. 48.3, and Art. 49.1.

24The Agreed Statement of Facts, the evidence of Ms. Van Zeggelaar, and the Memorandum of Settlement signed by the parties have been carefully considered along with relevant provisions of the collective agreement, the Labour Relations Act, 1995, and the Employment Standards Act, 2000. By s.48(12) of the Labour Relations Act, 1995, an arbitrator is provided with the authority to interpret and apply human rights and other employment-related statutes, and this includes the Employment Standards Act, 2000.

25By sections 3.(1) and 3.(4) of the Employment Standards Act, this Act clearly applies to Crown employees such as the Grievor, and by s.5.(1) of the Act the contracting out of, or waiving of, an employment standard is expressly prohibited. As such, the provisions of the Act apply to Ms. Van Zeggelaar and provide for a minimum standard of specified benefits and rights to the employee that must be adhered to by the employer. However, by s.5.(2) of the Act an employer may provide a set of rights or benefits in a specific matter that are greater than those in the Act, in which case the minimum provisions in the Act in that particular matter are superseded and no longer apply.

26Article 24(2) of the collective agreement explicitly incorporates s.(50) of the Act into the terms of the collective agreement that apply to fixed-term employees. This Emergency Leave provision in s.(50) specifies that an employee is entitled to take emergency leave and bereavement leave for up to a combined total of 10 days in each calendar year.

27The instant collective agreement provides for a greater range of relatives for whom bereavement leave may be taken than does s.(50) of the Act. The collective agreement also enables employees to apply for special or compassionate leave which may be granted at the discretion of a Deputy Minister or delegate. As such, and with no changes of any kind made in the collective agreement to the emergency medical leave provisions imported in from the Act, the conclusion can be reached that the collective agreement provides a greater personal emergency leave benefit than does the Act.

28The foregoing notwithstanding, the combined quantum of emergency medical leave and bereavement leave days that may be taken by an employee, whether by way of the Act or under the collective agreement, remains at a maximum of ten. As noted in Re Revera, (supra), this right is not negated by a failure to meet the timely notice requirement in s.5.(3) and s.5.(4) of the Act. As such, by the terms of s.(50) of the Act, whether through incorporation into the collective agreement or directly, an employee such as Ms. Van Zeggelaar is entitled to take up to a total of ten days of emergency and bereavement leave in a calendar year, and by s.74.(1) of the Act the Employer is prohibited from dismissing or disciplining her should she do so.

29The Memorandum of Settlement states in paragraph 4 that, upon being returned to work on February 8, 2016 on a twelve month fixed-term contract, Ms. Van Zeggelaar would not be absent for more than ten scheduled shifts, including but not limited to for reason of any illness whatsoever including those which may amount to a disability. It was also agreed that should Ms. Van Zeggelaar not comply with the provisions of paragraph 4 and be absent for more than ten scheduled shifts, then her contract would cease and her employment end. The Memorandum of Settlement further provides that the sole issue that can be grieved to the Grievance Settlement Board is whether Ms. Van Zeggelaar has complied with paragraph 4.

30As it turned out, by December 5, 2016, Ms. Van Zeggelaar had been absent from her scheduled shifts on fourteen occasions. On January 12, 2017, the Grievor’s fixed-term contract was terminated by the employer effective immediately. We turn to address the matter of whether or not Ms. Van Zeggelaar’s absences contravened the provisions of paragraph 4.

31In seeking to give the language of paragraph 4 its plain and ordinary meaning it must be assumed that, in reaching their Memorandum of Settlement, the parties intended to comply with and not knowingly contravene any applicable legislation. This includes the Employment Standards Act and in particular s.5.(1), a provision that prohibits the parties from contracting out of or waiving an employment standard and that further provides that any such contracting out or waiver is void.

32By paragraph 4 of the Memorandum of Settlement, Ms. Van Zeggelaar’s fixed-term employment contract is to be terminated should she be absent for any reason for more than ten scheduled shifts. However, it cannot be found that this number includes leaves of absence for personal sickness, sickness of a child, and bereavement leave of up to a total of ten days in a calendar year as this would contravene the provisions of the Employment Standards Act, namely subsections 1, 2, and 5 of s.(50) and s.74.(1). A similar finding to this was also reached by arbitrator Hayes in Re Revera, (supra) and by arbitrator Swan in Re Natrel, (supra).

33Five of Ms. Van Zeggelaar’s fourteen absences were identified in the agreed statement of facts to be for reasons of child care, and the evidence discloses that Ms. Van Zeggelaar has an eight year old son who suffers from a medical condition of extreme migraine headaches that require the presence and care of the Grievor. Seven of these fourteen absences were for reasons of personal illness. By s.(50) of the Act an employee may have leaves of absence totaling no more than ten in a calendar year for reasons of personal injury or sickness, or relating to the sickness, injury, or death of a child or other person designated in the Act. As such, it is found that ten of Ms. Van Zeggelaar’s fourteen days of absence from working a scheduled shift fall inside the provisions of s.(50) of the Employment Standards Act. These ten days cannot be counted as part of the total days of absence referenced in paragraph 4 of the Memorandum of Settlement that would lead to the termination of the Grievor’s fixed-term contract, as this would contravene s.74.(1) of the Act that prohibits the disciplining of an employee for taking leaves of absence that fall inside the provisions of s.(50) of the Act.

34From the start of her fixed-term contract on February 8, 2016 up to the end of 2016, Ms. Van Zeggelaar was absent from work for fourteen scheduled shifts. Ten of these are protected by the provisions of the Employment Standards Act and for which she cannot be disciplined. As such, the remaining scheduled shifts for which she was absent and can draw discipline total four. This is short of the ‘more than ten’ absences required by paragraph 4 of the Memorandum of Settlement to lead to the termination of her fixed-term contract. As such, Ms. Van Zeggelaar’s grievance succeeds.

35Accordingly, Ms. Van Zeggelaar is to be returned to work forthwith to complete the balance of her fixed-term contract. She is to be made whole, subject to normal mitigation principles, for the period of time from which her contract was terminated to the date she is put back to work. The issue of quantum of compensation is remitted back to the parties for calculation. The undersigned remains seized in the event the parties are unable to agree on any aspect of remedy.