City staffer gets benefits despite calculation mishap

The City of Toronto was ordered by an arbitrator to compensate an employee who was shorted benefit compensation following a calculation mishap.

The grievance was raised by a part-time worker, Jason Pfautsch, in the city’s facilities division through his union, the Canadian Union of Public Employees (CUPE) local 79 chapter.

Of concern for CUPE was that the way the city calculated the number of hours Pfautsch worked led to discrepancies when it came to its illness or injury plan (IIP).

Pfautsch worked in a 40-hour per week position, but in 2009 (the year in which he was hired) he worked 11 hours and in 2010 he worked about 956 hours.

Instead, the City of Toronto calculated that Pfautsch worked 984 hours in 2010 for the purposes of provisions in the collective agreement pertaining to the eligibility of IIP benefits — which the contract notes becomes available given an employee has worked at least 910 hours.

According to CUPE 79 and Pfautsch, the city ought to consider the actual hours worked by the grievor during 2010, which would be 1,059 (including vacation and statutory holiday pay) hours, and entitle Pfautsch to IIP.

As noted and agreed upon by both parties, employees are paid every two weeks in arrears. Payment is made a few days after the two weeks have been worked. In determining whether an employee has reached the numerical threshold set out in the collective agreement to become eligible to receive IIP hours, the city looks to the year in which the hours are paid rather than the year in which the hours are worked.

Had the city taken the latter approach, the grievor would have qualified for the IIP hours for 2011 — but because it took the former, he did not. Such a move violated the collective agreement, according to the union.

"The language of the agreement is clear and unambiguous. It requires the city to consider when the hours were worked, not when they were paid," the union argued at the hearing.

"The provision says nothing about pay periods or pay days. Such matters are entirely internal to the city. It could not possibly have been the parties’ intention to render the calculation subject to the city’s internal practices or procedures."

On the other hand, the employer argued the collective agreement would have explicitly involved an amendment pertaining to the phrasing of "hours worked" versus "regular paid hours."

While "hours worked" is referenced elsewhere in the contract, the city noted that for clauses related to IIP, it would serve well to interpret as "hours paid."

"(The city’s) pay and benefits system is set up to meet its legal obligations to the Canada Revenue Agency for income tax purposes. This involves accounting for hours when they are paid, not when they are worked," the city explained.

In making his decision, arbitrator Russell Goodfellow sided with the union.

"What the city’s interpretation would do is infuse, or read into, the former further element of timing – that of payment in accordance with its pay dates following its biweekly pay periods," Goodfellow said.