GSB# 2016-2836; 2017-1094; 2017-1919; 2017-3587; 2020-2070
UNION# 2017-0601-0004; 2017-0601-0007; 2017-0601-0011; 2018-0601-0002;
2020-0601-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Smieja)
Union
- and -
The Crown in Right of Ontario (Ministry of Children, Community and Social Services)
Employer
BEFORE
Christopher Albertyn
Arbitrator
FOR THE UNION
Jane Letton Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Ferina Murji Treasury Board Secretariat Legal Services Branch Senior Counsel
TELECONFERENCES
April 29, June 4, August 20 and November 30, 2020
Decision
1Previous decisions were issued in this matter, on April 4, 2018 and April 30, 2019.
2The April 4, 2018 decision directed that two issues would be addressed together:
The Grievor’s claim to receive 65 days’ pay for the waiting period until his WSIB payments were received; and
The Employer’s counterclaim that the Grievor was paid by the Employer for a period (identified in correspondence to him dated September 6, 2017) when he was also receiving payments from WSIB, resulting in him being double paid for the same period. The Employer seeks to be reimbursed what it paid the Grievor.
3The Union objected to the inclusion of the Employer’s counterclaim as part of consideration of his claim. The April 30, 2019 decision set out the process by which the Union’s objection was to be addressed.
4Subsequently, the Employer elected not to pursue any counterclaim against the Grievor within this proceeding.
5Consequently, this matter is concerned only with the Grievor’s claim to have been paid correctly for the 65 days prior to his WSIB payments being received.
6The parties have made submissions on the merits for the Grievor’s claim. The pertinent provision of the collective agreement is Article 41.2. It reads:
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.
7Under this provision the Grievor ought to have been paid 100% of his earnings for the 65-day period.
8The Employer and the Union have exchanged relevant documents pertaining to the Grievor’s claim. Those documents reveal that the Grievor received $3,652.74 less than he ought to have been paid for the 65-day period and throughout 2013. That amount is owed to him by the Employer.
9The documents also show that the Grievor was short paid for certain sick leave absences during 2014 in the sum of $258.51. While this does not form part of the grievance, the Employer has acknowledged that the payment is due to the Grievor and that it may be included within this Decision.
10The Union made reference to Article 41.5 of the collective agreement. It reads:
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.
11Article 41.5 has no application to the grievance because the Grievor utilized his short-term sickness entitlement during 2013 and, had he maintained any credits, those would have expired at the end of 2013.
12In light of the above, the total amount of $3,911.25 (the sum of $3,652.74 + $258.51) is owed by the Employer to the Grievor. The grievance pursuant to Article 41.2 is accordingly upheld.
13I direct that the Employer pay to the Grievor the sum of $3,911.25, plus $319.20 as interest, making a total of $4,230.45, less statutory deductions.
14I remain seized of the implementation of this Decision.
Dated at Toronto, Ontario this 6th day of January, 2021.