Brockville Mental Health Centre violated provision: Arbitrator
A dispute over sick leave entitlement went in the union’s favour recently when the arbitrator concluded a provision in the collective agreement was being violated by the employer, Brockville Mental Health Centre in Ontario.
The provision concerned the calculation of sick leave entitlement when an employee returned to work at some point during the calendar year, following a period of absence that included the start of the year. The provision gave an annual entitlement of 28 days on Jan. 1 each year, for active employees.
If an employee was off work and returned to work during the year, the union — the Ontario Public Service Employees Union, Local 439 — said the employee was entitled to the full annual entitlement while the hospital said the entitlement was prorated for the time remaining in the calendar year.
Article 21.03 of the collective agreement stated: “Employees will receive 100 per cent of the basic salary for the first 28 working days of sickness or disability in a calendar year. New employees will receive a prorated amount on the basis of 2.33 days per month remaining in the calendar year since the day of hire but in any event not less than 7 days in the first year of employment… The 28 days are reinstated each January 1st, for active employees, and are not cumulative from year to year.”
The employer also relied on article 13.08 of the agreement, which read: “During an unpaid absence exceeding 30 continuous calendar days, credit for service for purposes of salary increments, vacation, sick leave, or any other benefit under any provision of the collective agreement or elsewhere, shall be suspended; the benefits concerned appropriately reduced on a pro-rata basis and the employee's anniversary date adjusted accordingly…
“It is further understood that during such absence, credit for seniority shall be suspended and not accrue during the period of absence. Notwithstanding this provision, seniority shall accrue for a period of 30 months if an employee's absence is due to disability resulting in WSIB or LTD benefits."
But the union said article 13.08 had no relevance to 21.03 as the former dealt with absences generally while the latter dealt with sick leave entitlements specifically.
The union also said article 13.08 dealt with unpaid leaves of absence, when sick leave was a paid absence, whether paid directly by the employer or by the insurer.
The employer argued there was no conflict between the two provisions and they should be read consistently. It said an employee on short-term or long-term disability was on an approved unpaid leave of absence because the benefit is paid by the insurer.
The union cited the provision that set out how seniority was accumulated, stating “seniority and service will continue to accumulate during any approved leave that does not constitute a break in service (and) seniority for regular part-time and casual employees shall accumulate based on actual hours worked, exclusive of overtime.”
By contrast, the sick leave entitlement of 28 days was not dependent on service (as seniority was for full-time employees), nor hours worked (as seniority was for regular part-time and casual employees), but was an annual entitlement that arose as soon as an employee returned to work, said the union.
Both parties decided to include a prorating provision for new employees, but they did not do so for existing employees, like Jackson.
“This difference is important for the proper interpretation of the provision. The parties’ specific choice on the matter leads to the conclusion that they intended that if an employee becomes active during the course of a calendar year, the employee must be given the full 28-day entitlement,” said arbitrator Christopher Albertyn.
“There is no reason why an employee should get less sick leave entitlement depending upon when they are off on sick leave during the year because, as the union argues, the 28-day paid entitlement is not dependent on service, nor on hours worked, and nor on when one’s illness absence occurs. As long as an employee is active during the calendar year, they are entitled to their 28 days of paid sick leave.”
Accordingly, active employees (but not new employees) are entitled to the full 28-day payment, irrespective of when they return to work, he said, adding article 13.08 does not alter this conclusion as sick leave is not unpaid leave.
“Whether the payment is from the employer directly or from the insurer, the employee is on a paid leave. Therefore, article 13.08 is intended for a different purpose, not to address the situation involved in this case.”
As a result, the union’s grievance around sick leave entitlement was upheld.
Reference: Brockville Mental Health Centre and the Ontario Public Service Employees Union, Local 439. Christopher Albertyn — arbitrator. Marie-Pierre Pilon for the employer, Michael Fisher for the union. June 6, 2016.
