GSB #2020-0572; 2020-0573; 2020-0584; 2020-0652; 2020-0653;

2020-0654; 2020-0655; 2020-0656; 2020-0657; 2020-0658;

2020-0659; 2020-0660; 2020-0661; 2020-0662; 2020-0663;

2020-0992; 2020-0995; 2020-1052; 2020-1057; 2020-1058;

2020-1059; 2020-1092; 2020-1093

UNION# 2020-0368-0096; 2020-0368-0098; 2020-0368-0112; 2020-0642-0005;

2020-0642-0006; 2020-0642-0007; 2020-0642-0008; 2020-0642-0009;

2020-0642-0010; 2020-0642-0011; 2020-0642-0012; 2020-0642-0013;

2020-0642-0014; 2020-0642-0015; 2020-0642-0016; 2020-0135-0018;

2020-0135-0021; 2020-5112-0145; 2020-5112-0150; 2020-5112-0151;

2020-5112-0152; 2020-5112-0154; 2020-5112-0155

“Appendix A attached”

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kilborn et al)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Kim S. Bernhardt

Arbitrator

FOR THE UNION

David Wright Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

HEARING and SUBMISSIONS

October 12, November 21, 25 and 29, 2022; April 19, 20, May 31, June 7, 2023

Decision

1This Award addresses pay-related issues that the parties have raised regarding 23 outstanding COVID-19 grievances that were filed during 2020.

2The two issues addressed in this decision are: 1.) entitlement to compensation during self-isolation periods for lost or cancelled overtime [OT] and holiday shift opportunities; and 2.) whether grievors are entitled to either of two pandemic-related monetary payments - supplements (or top-ups) to the Short-Term Sickness Plan (STSP) / Attendance Credits and/or Coronavirus Leave Paid [CLP]. Regarding CLP, the Employer challenges whether this Board has jurisdiction to determine entitlement to the payments as they argue that the CLP was established outside of the Collective Agreement [C/A].

3The facts associated with the matter were not in dispute; accordingly, the parties were able to agree to a Statement of Agreed Facts and Issues [ASF], attached as Appendix A, which, along with the documents that accompany it, serve as the evidentiary record in this matter. No witnesses were called to testify.

BACKGROUND

4The context for the dispute is the March 11, 2020 World Health Organization declaration of COVID-19 as a global pandemic, and the subsequent Ontario Government’s declaration of a province-wide state of emergency. As the Ministry’s correctional institutions were designated as an essential service under Ontario’s Emergency Management and Civil Protection Act [EMCPA], Institutional Services employees (such as the group of employees involved in this grievance), were required to report to the workplace, and the Ministry was required to comply with the protocols issued by Ontario’s Public Health officials.

5The Ministry was also obliged to comply with article 9.1 of the Collective Agreement (C/A) to provide for the safety and health of its employees, as well as the Occupational Health and Safety Act [OHSA] to take every reasonable precaution for the protection of its staff.

6As required by the Public Health authorities, effective March 17, 2020, the Employer required employees to attest to a Staff Self-Assessment and Affirmation when signing into work regarding any COVID symptoms, as identified and updated according to the health authorities.

ISSUES

Issue 1: Overtime & Holiday Pay Issues, regardless of whether the Grievors were symptomatic or asymptomatic.

7The parties outlined the issues to be determined under Issue #1 as follows:

a. If Public Health authorities and/or the Employer based on the advice, recommendations and instructions issued by Public Health authorities directed the Grievor to self-isolate because of COVID-19 and not attend work, and if the employee had not been offered any overtime opportunities in respect of the self-isolation period, is the Employer required to pay the employee for lost opportunity to accept potential overtime assignments, if any, during the self-isolation period per the Collective Agreement and/or the applicable STSP “Top-Up” Memorandum of Agreement [STSP Top-Up MOA]?

b. If Public Health authorities and/or the Employer, based on the advice, recommendations and instructions issued by Public Health authorities, directed the Grievor to self-isolate because of COVID-19 and not attend work and if the employee missed a scheduled overtime assignment(s) that had been offered and accepted by the employee before the self-isolation period, is the Employer required to pay the employee as if the employee had actually worked on that overtime shift(s) during the self-isolation period per the Collective Agreement and/or the applicable STSP Top-Up MOA, if any?

c. If Public Health authorities and/or the Employer based on the advice, recommendations and instructions issued by Public Health authorities directed the Grievor to self-isolate because of COVID-19 and not attend work and if the employee had not been offered any Holiday work opportunities that arose in respect of the self-isolation period (e.g., Good Friday or Easter Monday or Family Day), is the Employer required to provide the employee with Holiday Payment for any lost opportunity to accept potential Holiday work assignments, if any, during the self-isolation period per the Collective Agreement and/or the applicable STSP Top-Up MOA, if any?

d. If Public Health authorities and/or the Employer, based on the advice, recommendations and instructions issued by Public Health authorities, directed the Grievor to self-isolate and if the employee had been scheduled to work on a holiday(s) that arose during the self-isolation period (e.g., Good Friday or Easter Monday or Family Day), is the Employer required to provide the employee with Holiday Payment even though the employee did not actually work on the Holiday during the self-isolation period per the Collective Agreement and/or the applicable STSP Top-Up MOA, if any?

8The parties agree that employees who were asymptomatic or symptomatic, tested positive for COVID-19, and/or who had to self-isolate as per Public Health instructions, were unable to attend work during the self-isolation period. Symptomatic grievors included those who claimed to have been exposed to or had close contact with an inmate, some other person in the workplace, or someone outside of the workplace who tested positive/was identified as having COVID and the grievor tested positive or was symptomatic.

9The parties agree that employees who were symptomatic or tested positive for COVID-19 were entitled to benefits under the Short-Term Sickness Plan [STSP] / Attendance Credits-Sick as outlined under the C/A. However, the Union suggests that these employees might be entitled to certain additional payments, for example if they had a successful claim under the WSIB and were entitled to a Top-Up under the STSP provisions. As the ASF states that there were no grievances that invoked this issue, in the interest of succinctness, it does not need to be determined.

10The Employer and the Union entered into a Memorandum of Agreement (the MOA, and the subsequent extensions) providing Special Time-Limited STSP Top-Up which supplemented the STSP / Attendance Credit pay received by employees who tested positive for COVID-19. The stated purposes of the MOA were to encourage employees to get tested for COVID-19, and to ensure that employees maintain their regular pay without requiring the use of additional credits (e.g., vacation). The STSP Top-Up MOAs were in effect from May 25 to August 31, 2020 and from December 18, 2020 to August 31, 2021.

11Effective January 1, 2020 the Employer established a new leave of absence, the Coronavirus Leave Paid (CLP) for asymptomatic employees who were required to self-isolate (due to exposure to the virus). The Employer maintains that this leave was established for employees who were required to self-isolate although they were not sick or injured, and thus not eligible for the STSP / Attendance Credit. In determining which employees would be eligible for CLP, as of March 17, 2020 the Employer required employees to attest to a “Staff Self-Assessment and Affirmation” regarding exposure risks (as identified and changed by Public Health on occasion) when signing into work.

12The Employer asserts that the GSB has no authority to impose any additional obligations upon the Employer outside of those that are within the C/A. As the CLP was established and administered by the Employer without the Union’s involvement, the Employer argues that there is no obligation for them to make the CLP payments under the C/A. The Union disagrees with these assertions, and argues that the obligation arises out of the requirement for the Employer to make reasonable efforts to protect the health and safety of the workers under article 9 of the C/A.

SUBMISSIONS OF THE PARTIES RE LOST OT AND HOLIDAY PAYMENTS

13The Union argues that while there is no dispute about the need for the self-isolation of asymptomatic (but exposed) or symptomatic employees to self-isolate, the Employer’s administration of the payments to self-isolating employees was unreasonable. The Union contends that the Employer should be required to pay the employee for any lost opportunity to accept any potential overtime assignments, if any, during the self-isolation period.

14By way of example, one grievor [JL] was asymptomatic but was directed to self-isolate from April 4 to 15, 2020 due to a workplace exposure to COVID. The Grievor was scheduled to work on eight days during this period, and did receive their regular pay for those shifts, as per the Employer’s CLP benefit. However, the Grievor contends that they should have also been paid for any lost opportunity to accept any potential overtime assignments during that period (the amount of potential overtime was not specified).

15The Union also argues that the Employer was obliged to pay for the pre-scheduled overtime shifts that employees lost due to the need for them to self-isolate. As an example, one grievor [DL] experienced COVID symptoms after exposure to an inmate and isolated from April 2 to 20, 2020. The Grievor received payment for the seven regular shifts that they missed during this period but contends that they should also have received payment for the two overtime shifts that they had been scheduled for on April 3 and 4, 2020, but had to cancel. No STSP Top-Up MOA operated during the Grievor’s self-isolation period.

16According to the Union, the right to these payments implicitly and explicitly arises out of the C/A from article 9.1 regarding Health & Safety and from article 2 requiring the reasonable exercise of management rights.

17The Union challenges the rule that management does not pay for scheduled or potential OT or holiday shifts for two reasons: first because of the Employer’s position that it did not matter how the employee became symptomatic. In the Union’s view, it does matter because the burden of self-isolation, and the subsequent loss of OT and holiday payments, is unfairly shifted to people who were engaged in workplace duties. By not paying employees if they were exposed by any method, including the workplace, these front-line workers who are unable to avoid the risk of exposure at the workplace are unreasonably burdened with the consequences of doing their job. The Union argues that this shift of a workplace burden onto the employees is not a proper exercise of management rights.

18The Union’s second argument to support their contention that the failure to pay for COVID-19 OT and holiday isolation periods is that it creates a disincentive for employees to report symptoms or incidents of COVID-19 close-contacts because it causes the employees to lose money. The Union posits that it is not a matter of the employees deliberately ignoring the potential of exposing others at the workplace, rather that there is incentive for an employee to think that they are not really feeling ill if reporting any such feelings resulted in a loss of income.

19In response to the Employer’s argument that there is no explicit or implicit right to these payments, the Union says that articles 2, 9; the STD plan in article 44; the holiday plan under article 47; and the special compassionate leave of absence [LOA] in article 49 provide for such payments. In addition to these C/A provisions, the Union contends that article 24 provides that employees have rights to paid LOAs under the Employment Standards Act [ESA], and rights per the OHSA requirement that employers make reasonable efforts to provide a safe work environment. The Union states that as section 48(12) of the LRA provides the authority for an arbitrator to interpret and apply labour statutes, the reasonableness of the Employer’s actions can be reviewed vis a vis these statutory obligations. Whether under the C/A or the statutory provisions, the Union argues that an arbitrator has the power to determine the reasonableness of the policy not to pay OT or holiday pay when an employee is absent due to a COVID-19 related LOA.

20The Union stated that they are not asserting that the Board has a free-standing right to review the Employer’s exercise of management rights. However, the Union’s argues that this dispute involves, primarily, the health and safety provisions under article 9, and so the Employer is required to exercise their management rights under article 2 in a reasonable manner. The Union asserts that because the issue involves health and safety, they are not asserting a free-standing right to review management’s policy of not paying for OT or holiday pay during COVID-19 absences. Contrary to the decisions in O.P.S.E.U. v. Ontario (Ministry of Community Safety & Correctional Services) [Belanger decision], 2006 CarswellOnt 9447 Ontario Grievance Settlement Board and O.P.S.E.U. v. Ontario (Ministry of Labour) [Jones, et al], 2010 CanLII 28609 (ON GSB), the Union claims that this case has the necessary link to the health and safety provision of the C/A so that it is not just relying upon the improper exercise of management rights.

21The Union cited the following case law, amongst others, in support of their position that management’s right to impose rules must be exercised in a reasonable manner in such circumstances. Such a review involves balancing the interests of the union members with those of the employer, including a consideration of the policy’s impact upon the employees. The Union notes this balancing of management and the union’s interests was upheld by the Supreme Court of Canada’s [SCC] decision in Association of Justice Counsel v. Canada (Attorney General) [Assoc of Justice Counsel], 2017 SCC 55.

22In the current case, the Union claims that the issue to be determined is whether the exercise of management’s rights, in light of their health and safety obligations, was reasonable, not whether the rule (absent the health and safety obligations) was reasonable.

23As for a remedy, the Union contends that I have the jurisdiction to order that the affected grievors be paid for their lost and for their scheduled and potential statutory holiday premium for the breach of the health and safety provisions under article 9. In support of their contention, the Union refers to two GSB decisions by Adjudicator Ken Petryshen involving a grievor, Hyland, who required accommodation due to his sensitivity to second-hand smoke - Ontario Public Service Employees Union (Hyland) and the Crown in Right of Ontario (Ministry of Correctional Services) [Hyland, June 6, 2003, and Hyland June 27, 2003]. Adjudicator Petryshen ordered that the grievor be compensated for the loss of the opportunity to work OT and to work the relevant statutory holidays due to the employer’s failure to properly accommodate him.

24The Employer’s view is that the overview of the background to the dispute, as outlined in the ASF, provides necessary context. As of March 2020, they were operating under a state of emergency due to the COVID-19 pandemic, and as an essential service that had to continue to operate, they were subject to the province’s Emergency Management and Civil Protection Act [EMCPA] and Regulations, requiring them to comply with the advice, recommendations and instructions issued by Ontario’s Public Health [Public Health].

25As is also outlined in the ASF, the Employer also was obliged under the health and safety provisions of article 9 of the C/A and under the OHSA to provide for the safety and health of their employees, and to also fulfill their obligations under the Ministry of Correctional Services Act [MCSA] to ensure the health and well-being of those under their custody.

26Given these obligations, the Employer maintains that they were required to impose isolation requirements for employees who tested positive for COVID as well as follow mandatory isolation requirements as per the requirements under Public Health, the C/A, and OHSA for both symptomatic and asymptomatic employees.

27The Employer asserts that under these conditions their conduct was “commendable”, as evidenced by the pandemic-related payments they made, which will be dealt with under Issue 2.

28In the Employer’s view, any obligation to pay compensation must be clearly and unequivocally found within the C/A, and there is nothing in this C/A that requires the Employer to pay employees for OT or statutory holiday premiums when they cannot attend work due to the recommendations of the health authority. The Employer notes that under Article 22.14.6 of the OPSEU COR C/A, the GSB does not have the authority to alter or add to the C/A by inserting such an obligation.

29The Employer refers to Arbitrator Stout’s “seminal” decision in Participating Nursing Homes and ONA (Covid-19 Sick Pay), Re [ONA Participating Nursing Homes], 2020 CarswellOnt 15021 in support of their position that any right to compensation must be clearly found withing the C/A. The Employer asserts that at pages 31 and 32 Arbitrator Stout confirms that the arbitral consensus that asymptomatic employees who were required to isolate were not entitled to pay as such entitlement must be found in the C/A. They also cited Arbitrator Davie’s decision in Rouge Valley Health System and ONA (Jossul), Re [Rouge Valley], 2007 CarswellOnt 11594 as supportive of this proposition.

30In further support of this proposition the Employer refers to other cases involving pay for asymptomatic COVID employees, such as Arbitrator Jesin’s comments in ONA and Humber River Hospital, Re [Humber River], 2021 CanLII 119793 (ON LA), 2021 CarswellOnt 17330 stating that a rights arbitrator’s role is to interpret the C/A and the parties could negotiate an extension of the sick pay provisions if they agreed to such payments. The Employer also found support for their position in Arbitrator Albertyn’s comments in GardaWorld Cash Services Canada and TC, Local 419 (07126), Re [GardaWorld], 2022 CarswellOnt 14214 that the situation was not a matter of determining what a fair apportionment of the burden of loss would be, but rather a determination of what entitlements were provided under the C/A.

31Under article COR8 of the C/A regarding OT, the Employer points out that an employee must “perform authorized [OT] work” on a scheduled workday or day off to qualify for OT. Similarly, under article COR13 of the C/A regarding holiday pay, an employee must “actually work” on the holiday to qualify for the holiday premium. There was no disagreement between the parties that employees who were ill or exposed to COVID-19 had to isolate. As a result, according to the Employer, any cancelled or potential OT or holiday premium payments were not owed to the employees as any employee who could not work due to illness or exposure to COVID-19 could not actually work on the relevant days, as expressly required under the C/A.

32The Employer asserts that in all cases the Grievors received all of their C/A entitlements (or more) during their self-isolation periods. As a result, there was no obligation on the Employer to pay OT or Holiday premiums under the C/A.

ANALYSIS REGARDING PAYMENTS FOR OT & HOLIDAY WHILE SELF-ISOLATING

33The C/A does not have a provision that states that employees are entitled to any OT or Holiday payments in circumstances when they are unable to attend at work. On the contrary, article COR8 describes that an employee is entitled to OT when:

COR8.2.3 In this article, “overtime” means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off.

COR8.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one-quarter (7¼) hours or eight (8) hours as applicable, shall be paid at the overtime rate.

COR8.3.2 Overtime shall be paid within two (2) months of the pay period within which the overtime was actually worked. Emphasis added.

34Under article COR13 – HOLIDAY PAYMENT, an employee is entitled to the Holiday premium benefit only when they “actually work” on the holiday:

COR13.1 Where an employee works on a holiday included under Article 47 (Holidays) of the agreement, they shall be paid at the rate of two (2) times their basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7¼), eight (8), or the number of regularly scheduled hours, as applicable.

COR13.2 In addition to the payment provided by Article COR13.1, an employee who works on the holiday shall receive either seven and one-quarter (7¼) or eight (8) hours pay as applicable at their basic hourly rate or compensating leave of seven and one-quarter (7¼) or eight (8) hours as applicable, up to 87 or 96 hours per calendar year as applicable, provided the employee opts for compensating leave prior to the holiday.

COR13.3 It is understood that Articles COR13.1 and COR13.2 apply only to an employee who is authorized to work on the holiday and who actually works on the holiday, and that an employee who, for any reason, does not actually work on the holiday shall not be entitled to the payments described herein. Emphasis added.

35It is clear from the terms used that the C/A provisions require that an employee “perform”, “actually work”, and “works” to claim OT and holiday premiums, which are limited to those who are present at the workplace performing the duties on the days in question. For further certainty regarding entitlement to holiday premiums, COR13.3 states “that an employee who, for any reason, does not actually work on the holiday shall not be entitled to the payments described herein”. Emphasis added.

36The fact that employees had to isolate because of COVID-19, whether they were asymptomatic or symptomatic, and whether they lost shifts that they were anticipating or scheduled to work that would have made them eligible for OT and/or for a holiday pay, meant that they could not attend at the workplace.

37I agree with the arbitral consensus, that any entitlement to pay when an employee does not attend the workplace, including cases involving COVID-19 related absences, must be clearly found either through legislation or within the C/A. This principle is clearly outlined in case law cited by the Employer. As stated by Arbitrator Stout at paragraph 53 in Participating Nursing Homes and ONA (Covid-19 Sick Pay), Re, 2020 CarswellOnt 15021 [Participating Hospitals]:

It is well accepted that employees are not entitled to be paid if they do not attend work. Any payment for an absence must be found in legislation or the collective agreement, see S.E.I.U., Local 1 v. U.S.W. (2008), 174 L.A.C. (4th) 210 (Ont. Arb.) (Surdykowski). In this case the right to compensation must be found within the four corners of the Collective Agreements.

38This Board has also adopted this principle, as per Arbitrator Petryshen’s comment in his OPSEU (Union) v. Ontario (Treasury Board Secretariat) GSB# 2017-2895 [GSB #2017-2895], (2020) decision at paragraph 21:

I agree with the arbitral consensus that monetary benefits are not to be inferred or implied, and must be supported by clear language in the collective agreement.

39The arbitral jurisprudence specific to COVID-19 absences are consistent in finding that the health and safety requirements of OHSA and article 9 of the C/A, for the Employer to take reasonable precautions to protect workers, do not require an employer to pay employees who have to self-isolate. Article 9.1 states:

The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

40As Arbitrator Stout found in Participating Hospitals, at paragraph 51:

This general duty to provide a safe and healthy workplace manifests itself in a general obligation upon employees not to come to work if they pose a hazard. At the same time, employers have a duty to provide for a safe and healthy workplace free from hazards. In this case there is no assertion by either party that those nurses who were self-isolating ought to have been at work. It is understood by both parties that all the nurses involved in this matter may have been infected with COVID-19 and as such pose a risk to other employees and vulnerable residents.

Stout (as do other arbitrators) makes the observation that the obligation to provide a safe workplace does not create a requirement for an employer to pay employees when they are self-isolating. However, arbitrators have consistently observed employees who are symptomatic (ill due to COVID-19) or who have tested positive for the virus, would be entitled to receive sick benefits, as they were in this case under the STSP provided in article 44 of the C/A.

41While the Union argues that the lack of payment for OT and holiday payments during COVID-19 self-isolation periods was an unreasonable exercise of management rights because of its impact upon the health and safety of the employees, I cannot agree that requiring employees to stay away from the workplace created a health and safety concern. The requirement was a Health Department mandate to reduce the risk of infection for colleagues and the vulnerable prison population that they served. Health and safety would have been compromised by requiring symptomatic employees or those exposed to the virus to attend work, not by keeping them out of the workplace. As for the Union’s suggestion that the lack of payment for OT and/or holiday payments would influence some employees not to isolate when they should (for example by not identifying any symptoms when being screened to enter the workplace), any such actions are what would create a health and safety concern. It would also breach the employees’ obligations under OHSA to do their part to maintain a safe working environment and violate the COVID protocols of the Employer and the Health Department.

42There is no dispute between the parties that employees who had to self-isolate because they were ill due to COVID-19 and/or tested positive for the virus, were entitled to and received their “regular salary” under the STSP provisions in article 44 of the C/A. There is no suggestion in Article 44 that such payments include compensation for OT or holiday premium benefits when an employee is unable to attend work due to illness.

43The Union is correct that this loss of income (or potential income) was borne by front-line workers who had to risk exposure to COVID-19 to do their jobs. As was well enunciated by Arbitrator Albertyn at paragraphs 15 to 21 in GardaWorld:

15 This case turns on where the burden of loss should fall, given that, understandably, neither party considered the possibility of a global pandemic when they concluded their collective agreement. Should the Employer carry the burden of loss occasioned by the required self-isolation, or should the affected employees carry that loss?

16 The affected employees had to self-isolate because the health directives of the Peel Region stipulated that. The Employer had to comply with those directives.

17 The Company's policy of applying the health directives of the Peel Region — to require self-isolation of those exposed to those infected with COVID-19 — formed part of the Company's duty to ensure that every reasonable precaution be taken to protect the health and safety of the employees. The requirement of self-isolation was therefore both reasonable and necessary for the affected employees.

18 I recognize that the affected employees were put into self-isolation because of their work, and because they performed.

19 But my jurisdiction is not as an interest arbitrator. I am not deciding what should be the fair apportionment of the burden of loss between the Company and the affected employees. I am determining, under the collective agreement, what rights the affected employees had to be paid while in self-isolation…

21 In the circumstances, the affected employees could not fulfil their obligation to be available to work during the period of self-isolation. They were therefore not entitled to be paid by the Company for that time. Emphasis added.

44Arbitrator Davie came to a similar conclusion at paragraphs 20 - 21 in Rouge Valley. In this circumstance the grievors were unable to attend work due to a MOH directive relating to a previous contagious outbreak:

20 Generally employees receive pay for attendance at work. Here something" happened which prevented the grievor from attending at work and receiving her pay. That "something" was not the grievor's fault or the Hospital's fault. It was a set of circumstances for which neither the grievor nor the Hospital bear responsibility. The question then becomes whether the circumstances which occurred are of the nature and type which engage those provisions of the collective agreement under which employees are nevertheless paid although not at work. This collective agreement, like numerous others, provides pay to employees who are not at work in a variety of circumstances ranging from vacation to leaves such as bereavement leave, pregnancy and parental leave etc. Another circumstance is that the collective agreement provides for pay when nurses are on "sick leave." The circumstances which caused the grievor to absent herself from work do not engage this collective agreement provision. The grievor was not ill, and was not unable to attend at work because of that illness. She missed work because of the directive issued by the Ministry of Health.

21 Employer counsel submitted that in order for the grievor to be paid for the days missed there must either be a change to the language of the collective agreement, or a statutory amendment to cover these types of circumstances. We agree. This issue will have to be addressed by the parties in their collective bargaining if they want these types of circumstances to be encompassed within the meaning of "due to illness" in the HOODIP brochure. Emphasis added.

45I concur with the conclusions of these arbitrators: while the unpaid absence of the grievors occurred through no fault of their own, without clear C/A language that provides them with payment for not attending at work, there is no entitlement to compensation for MOH required absences due to COVID-19.

46Given that the clear language of the C/A does not provide for the payment of lost or potential OT and holiday shifts, I find that the Employer had no obligation to pay for OT or holiday premiums when employees could not attend to perform the work.

Issue 2: Pandemic Monetary Payments – STSP Top-Up MOAs and CLP.

47The parties identified that the issues that need to be determined in Part 2 of this dispute are:

a. Claims of entitlement to the “top-up” of their STSP or Attendance Credits, as applicable, outside of the STSP Top-Up MOAs’ effective periods; and

b. Claims about whether the Grievor satisfied the CLP’s eligibility criteria to be granted CLP in self-isolation situations.

48Some Grievors, who had to isolate due to testing positive for COVID-19, claimed that they were entitled to the STSP Top-Up MOA payments that the parties had negotiated. As outlined in paragraphs 26 to 29 of the ASF, employees who tested positive and had to self-isolate received their regular sick benefits but to encourage employees to get tested they were also entitled to have their STSP or Attendance Credits “topped up” by the Employer (including situations where the employee did not have any remaining STSP or attendance credits). This allowed the employees to maintain their regular pay without having to use their vacation (or other) credits to do so.

49As outlined at paragraph 34 of the ASF the Employer contends that it decided to establish the CLP because self-isolating employees who neither experienced any symptoms of COVID-19 nor tested positive for COVID-19 were not “sick” or “injured" during the required self-isolation period and were therefore ineligible for STSP or Attendance Credits as provided for in the Collective Agreement (as described above). The Union acknowledges that they do not have evidence to challenge this assertion. As per paragraph 37 of the ASF, the CLP “ensured that these asymptomatic employees received their pay for their regularly scheduled hours during the self-isolation period”.

50Some of the claimants for the STSP Top-Up did not test for COVID-19 and thus did not receive a positive COVID-19 diagnosis, a requirement of the STSP-Top-Up MOA as described under paragraph 27 of the ASF, and/or they had self-isolation periods outside of the MOA’s effective dates.

51As examples of grievances claiming that they should have received payments under the CLP Grievors Kilborn (TK) and her spouse Grievor Wells (JW) were both asymptomatic and self-isolated after their daughters returned home from travelling; there was no assertion that the daughters were symptomatic. These Grievors claim that they were instructed by Tele-Health Ontario to self-isolate, and that TK was told by a Superintendent that they should self-isolate and would be paid. It is the Union’s position that these Grievors were entitled to a paid LOA.

SUBMISSIONS OF THE PARTIES RE PANDEMIC MONETARY PAYMENTS

52The Employer has raised jurisdictional issues regarding these payments as it asserts that it had no obligation under the C/A to make such payments, and that the GSB’s authority is limited only to enforcing the obligations agreed upon between the parties. The Employer also raised an alternative argument regarding some remedial claims for compensatory damages if it is determined that this Board does have the jurisdiction over these claims.

53The Employer argues that the CLP was totally outside of the C/A as there was no C/A provision to pay asymptomatic employees who self-isolated, nor was there any Memoranda of Understanding between the parties regarding the CLP. It was created solely at the initiative of the Employer and not subject to any review as a part of any agreement with the Union.

54The Employer’s position is that management’s action of denying CLP to some workers did not engage the health and safety provisions of article 9 as their COVID-19 protocols complied with their responsibility to keep employees and others at the workplace safe, according to the Employer. While they had such an obligation, this obligation did not require them to pay employees for not attending work when they were self-isolating. Without any link to a stand-alone C/A provision, such as article 9, the Employer argues that this Board does not have the authority to review their implementation of the CLP program. Even if it was unreasonably implemented, which the Employer denies, the Board lacks the authority to review the exercise of management’s rights under article 2 of the C/A. According to the Employer, there was no dispute that they fulfilled their health and safety obligations, and there was no monetary provision in the C/A that required them to pay for the absences.

55The Employer reiterated their position that monetary benefits that are not provided through statutory or clear C/A requirements cannot be “read into” the C/A. In the Employer’s view, to do so would alter the C/A, contrary to article 22.14.6 of the OPSEU COR C/A, which the Employer points to as support for their position that the GSB does not have the jurisdiction to alter, change, amend or enlarge any provision of the [C/A] by creating monetary entitlements.

56The Union challenges the Employer’s refusal to pay the STSP Top-Up for employees who were symptomatic, but who either did not test to confirm whether they had COVID-19 and/or where absent due to their symptoms and were not provided with additional Attendance or Sick Credits because the STSP Top-Up MOA was not in effect at the time of their absence. Given the changing nature of the virus, which was reflected in the changes to the Employer’s protocols such as the amendments to the screening tools, it was unreasonable for the Employer to deny the payment of such benefits, the Union submits.

57] In both issues under dispute – payment for STSP Top-Up and/or CLP – it is the Union’s position that they are not asserting a stand-alone right for the review of management’s decisions that are not enshrined in the C/A. It is the Union’s position that management’s actions should be reviewed as an improper response to their health and safety obligations under article 9 as well as under the OHSA. Article 9 rights are implicated, according to the Union, as they had an interest in who entered their corrections facilities to reduce the risk of spreading the virus. The Employer’s health and safety obligations were also engaged in taking reasonable precautions to ensure a safe and healthy workplace, which they identified as one reason why the CLP was established. This is the link between the C/A and management’s actions that the Union asserts provides the authority for the Board to review whether the protocols and policies were reasonably implemented.

58The Union points to the grievance of TK as evidence that these health and safety obligations were not properly observed by management. It was unreasonable, in the Union’s view, to deny CLP LOA to TK given that she had been instructed by Tele-Health Ontario and the supervisor to self-isolate and was given assurances by her supervisor that she would be paid for her period of self-isolation. The Union contends that it was not reasonable to expect TK to attend work given these instructions and that it would be unsafe. TK missed her eight shifts that were scheduled between March 19 and April 2 2020, was not paid for these absences, even though the screening criteria changed and she was in compliance with the changed self-isolating criteria that the Employer had in place for the last two days of her absence. The Union argues that this was an unreasonable application of the Employer’s health and safety protocols. The Union also argued that the lack of such payments, with the subsequent loss of income, was a disincentive for employees to acknowledge that they might have symptoms and so would attend at the workplace, which would lead to a potential health and safety risk of the virus being spread.

ANALYSIS OF WHETHER THE EMPLOYER WAS OBLIGATED TO PROVIDE PANDEMIC MONETARY PAYMENTS (STSP Top-Up or CLP) TO GRIEVORS

59There is no dispute that the CLP was introduced by the Employer, in response to the unprecedented COVID-19 pandemic, to provide compensation for employees who were asymptomatic but were required to self-isolate due to potential exposure to the virus. As the Employees were not ill, they did not qualify for STSP, but the CLP ensured that such employees received pay for their regularly scheduled hours during the self-isolation period.

60As the Employer argued, the GSB’s jurisdiction is limited by article 22.1 to “adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.” Article 22.14.6 states that “the GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements.” I agree that it would be an expansion of my authority to review management’s administration of the CLP programme which did not form a part of the C/A, nor involve the Union’s concurrence.

61As a result, the Employer’s decisions in cases such as the Grievor TK (and her spouse) are not subject to review by this Board. As pointed out by the Employer, and as included in the parties’ Joint Book of Documents, TK’ April 16, 2020 grievance did not even allege a health and safety violation of the C/A. The CLP did not form a part of the C/A, and the Union’s argument that the health and safety provisions were engaged is not persuasive as the protocols that were put in place by the Employer were guided by Public Health guidelines to keep the virus from spreading were in place for most of her self-isolation. In TK’s situation, she did not need to self-isolate under the screening protocol that was in place and could have attended at the workplace. She chose not to attend work, due to advice she claims to have received, but there was no evidence to establish this assertion. Nor was there evidence that TK was disciplined for not attending work, it appears that she just was not paid for the shifts that she missed.

62The parties did negotiate the STSP Top-Up MOAs, but the grievances given as examples involved situations where the Grievors did not comply with the terms of the MOA as they did not test or submit a positive COVID-19 test result, and/or their self-isolation period did not fall within the time frames that the parties had agreed to. As a result, there was no violation of the C/A or the MOA between the parties.

63In addition, certain Grievors also claimed that they should be awarded compensatory damages for mental stress, which the Employer opposed on the basis that there is no merit to such claims and that the GSB has no jurisdiction to award such damages in this matter. As it has been determined that the GSB does not have the authority to review the grievances as they do not engage obligations under the C/A, it is unnecessary to determine such claims.

CONCLUSION

64Employees who were symptomatic and/or tested positive for COVID were provided with sick LOA for the duration of their isolation period, and the STSP Top-Up MOA provided additional compensation for symptomatic employees during their self-isolation period. Those who had to isolate but were not sick were provided with compensation that was within the Employer’s discretion to provide as there was no contractual obligation to provide payments for employees who could not attend work but had to self-isolate. I agree with the arbitral consensus, including those decisions specific to COVID-19 cases, that “monetary benefits are not to be inferred or implied, and must be supported by clear language in the collective agreement” as stated by Arbitrator Petryshen in GSB #2017-2895. There was no such provision in this C/A for OT or Holiday premium to be paid when an employee was absent due to COVID-19 requirements.

65The parties agreed that this Board cannot take jurisdiction over a matter where the only challenge is that management unreasonably exercised its rights under the C/A. The Union argued that the health and safety provisions under article 9 were engaged by the lack of compensation paid for employees who missed OT and holiday premiums while having to self-isolate. As I have found, there is no entitlement to such payments in the C/A, nor can the requirement to make all reasonable efforts to provide a safe working environment under the C/A’s health and safety provisions be interpreted as generating a responsibility under the management rights clause to compensation not otherwise provided for in the C/A.

66I concur with Arbitrator Abramsky’s statement in Ontario Public Service Employees Union (Jones et al) and Ministry of Labour [OPSEU, Jones, et al], 2010 CanLII 28609 (ON GSB), at paragraph 14:

The Board has repeatedly and consistently held it has no “free standing” jurisdiction to review the exercise of management rights for reasonableness, and the “Board’s jurisdiction remains restricted to matters arising either explicitly or implicitly from the collective agreement.” OPSEU (Dobroff et al.) and Ministry of the Environment, GSB No. 2003-0905 et al., at p. 25 (2008) (Dissanayake); OPSEU (Ashley et al.) and Ministry of Community, Family and Children’s Services), GSB No. 2001-1700 (2003) (Abramsky); OPSEU (May et al.) and Ministry of Community Safety and Correctional Services, GSB No. 2002-1151 (2007) (Abramsky). Emphasis added.

DECISION

67For these reasons the grievances are dismissed.

Dated at Toronto, Ontario this 1st day of November 2023.

APPENDIX A

Solely and exclusively for the purposes of the arbitration of the Kilborn et al. Active Grievances before Arbitrator Bernhardt (November 2022)

AGREED STATEMENT OF FACT AND ISSUES

ISSUES

1.The Employer and the Union have identified a total of 491 outstanding COVID-19 pay-related grievances filed up to September 30, 2021 (the “active Kilborn et al. Grievances”). To assist the Parties in resolving these outstanding grievances, the Parties are seeking the GSB’s determination in two (2) main areas of dispute.

2.First, the Employer and the Union are seeking a determination of the following pay matters that have been grieved concerning the Grievors’ COVID-19 self-isolation periods:

a. alleged compensation for “lost” overtime opportunities or for cancelled overtime shifts during self-isolation periods; and

b. alleged compensation for “lost” holiday work opportunities or for cancelled holiday shifts during self-isolation periods.

3. These matters are addressed in “Part I: Overtime & Holiday Pay Issues” below with several grievance examples to serve as factual background. Whether the Grievors were “symptomatic” or “asymptomatic”, the issues to be determined are:

1 The Parties are working on an Appendix of resolved, decided and withdrawn matters to determine a final total. The Parties note that the grievances of Linda MacGregor (MH/VW) [Row 50, GSB No. 2021- 0540 OPSEU No. 2021-0234-0055 dated May 21, 20221 (alleging “mandatory mask caused medical issues”) will be dealt with as an accommodation issue. The grievance of Rhona Green (TSDC) [Row 57, GSB No. 2021-0713 / OPSEU No. 2021-5112-0114 dated May 20, 2021 (grieving not being able to work in more than one facility as a nurse)] will be dealt with separately. The Employer asserts that Grievors Abu Libda (SWDC) [Row 4, GSB No. 2020-1827 / OPSEU No. 2020-0135-0029 dated August 7, 2020], Shaheer Pirzada (TSDC) [Row 33, GSB No. 2020-0737 / OPSEU No. 2020-5112-0104 dated May 22, 2020] and Sammy Yu (TSDC) [Row 56, GSB No. 2021-0492 / OPSEU No. 2021-5112-0088 dated April 30, 2021] did not provide information sufficient to even understand their claims by July 6, 2022. Accordingly, the Employer asserts per the GSB’s order dated June 9, 2022, these grievances should be dismissed. The Employer has also reserved its right to raise any preliminary objections in respect of remaining active grievances as applicable, including timeliness objections as applicable. For example, Grievor Sammy Yu (TSDC) [Row 56, GSB No. 2021-0492 / OPSEU No. 2021-5112-0088 dated April 30, 2021] has not provided sufficient information and, in addition, his grievance is untimely (concerns shifts in December 2020). In addition, Henry Herman (TSDC) [Row 28] GSB No. 2020-0722 / OPSEU No. 2020-5112-0088 (April 17, 2020) has retired. However, the parties agree that these preliminary objections will be dealt with, if still applicable, after the GSB has issued its determination respecting the areas of dispute as identified herein.