Brewing brouhaha

A recent ruling saying Sleeman did not pay one of its employees the holiday pay he was owed might be tough to swallow for the Ontario-based brewing company.

Though he was on sick leave at the time, Fernando Pires was entitled to the holiday pay he did not originally receive for July 1, 2013, or Canada Day, according to a recent arbitration decision.

Pires had been on sick leave from June 19, 2013, to July 4, 2013, and was receiving sick benefits at the time, which pays less than what he would have gotten paid had he been at work.

Canada Day is a named holiday under Sleeman’s collective agreement and, as such, no one was scheduled to work that day. Had Pires not been on sick leave, he would have been entitled to a paid holiday or day off in lieu. When he got neither, he filed a grievance through his union, the Sleeman Employees’ Association.

Further complicating the matter is that, though this particular grievance is an individual one, both parties are heading into collective bargaining, and this decision could set a precedent during negotiations.

During the hearing, the employees’ association argued holiday pay is an earned benefit part of the overall compensation package for workers — regardless of whether they are on sick leave or not — and reflects compensation already earned.

"Holiday pay is an earned benefit and receipt of sick benefits under (the collective agreement) does not disqualify employees from also receiving holiday pay," the union argued. "Holiday pay was not a bonus, and is not limited to employees engaged in active employment, but is earned by previous service."

However, Sleeman argued that because Pires was receiving sick leave compensation, he was not entitled to the holiday pay. Employees on short- and long-term disability are entitled to an insured benefit, and the collective agreement dictates the employer’s responsibility was limited to pay premiums only for that insured coverage.

Receiving the sick benefit automatically means an employee is no longer actively at work — and that sick benefit replaces all income, including income that would have been paid for days on which the employee qualified for holiday pay.

"To claim both the sick leave benefit and the holiday pay is double-dipping," Sleeman argued, adding that these benefits were not independent of each other. "Simply being employed does not result in entitlement to the benefit unless there is express language in the collective agreement to that effect."

The collective agreement did not otherwise rule out holiday pay to an employee who is absent from work due to medical reasons. Instead, its provisions stated the employer "shall" pay holiday pay to "an employee" for that day.

"Holiday pay is not ‘income lost because of a disability’ as referred to in the benefit booklet regarding short-term disability because I have found that the employer’s obligation to pay holiday pay continues even for an employee absent from work due to disability," Nairn’s decision reads. "The payment of holiday pay is the employer’s obligation. The payment of short-term disability is not."

Thus, Sleeman was guilty of not paying out holiday compensation where it was due.

Reference: Sleeman Brewing & Malting Co. and the Sleeman Employees’ Association. Marilyn Nairn – arbitrator. James G. Knight for the employer, Simon Blackstone for the union. Jan. 14, 2014.