Article doesn't override other agreement article: Arbitrator
In late 2016, a long-time worker at Ontario Power Generation notified his employer that he wished to retire on Feb. 1, 2017.
Floyd Wood originally planned to take a vacation from Aug. 2, 2016, until Sept. 13, and then draw on his earned retirement bank entitlement on Sept. 14, which would provide regular income until his retirement.
However, Wood suffered a heart attack and underwent triple-bypass surgery on Oct. 4, and the next day he informed the employer that he needed to stop drawing on the retirement-bank benefit and be placed onto sick leave, thus preserving the retirement-bank benefit.
Wood’s doctor informed the employer that due to his heart attack, he would not be physically able to return to work until Feb. 15.
Ontario Power Generation refused the request and ordered Wood to continue to draw from the retirement bank until his retirement date of Feb. 1.
The union, Power Workers’ Union (PWU), grieved the decision and argued Wood was entitled to the sick-leave benefit, as per article 6.7 of the collective agreement which said, “an employee may defer vacation equivalent” and the article reinforced this when it referred to “deferred vacation in the retirement bank.”
“When an employee on vacation becomes seriously ill or injured and as a result must be removed from vacation setting entirely, he or she should be entitled to sick leave,” read article 6.5.3 of the collective agreement under the heading of postponed vacations.
The employer countered and said one aspect of the rules in 6.7 were clear and would not allow Wood to interrupt his vacation time. “When the employee takes time from the retirement bank, such time must be taken by the employee in one-consecutive period after they become eligible for an undiscounted pension and immediately preceding their retirement,” read the agreement.
The article that referred to retirement bank (6.7) should have only come into play when dealing with the bank, argued the employer, and it also didn’t include any language about sick leave.
Arbitrator Larry Steinberg upheld the grievance and ordered Wood to be fully compensated for all lost benefits.
“There is no language that restricts employees who are taking deferred vacation from the retirement bank from accessing other provisions of the collective agreement that might apply to them. And the clear language of item 6.5.3 permits employees who are on vacation to convert the time to sick leave in the case of serious illness,” said Steinberg.
“In the absence of language to the contrary, I am of the opinion that the language and structure of item 6.7 relied on by the employer does not preclude employees from accessing other collective agreement benefits, such as item 6.5.3, for which they are entitled.”
And Ontario Power’s arguments were not persuasive, according to the arbitrator.
“Moreover, the purpose of a sick leave benefit is to cover an employee’s income during a period of illness whereas a vacation benefit is to provide income during a period where the employee can rest and pursue pleasurable activities. Clearly, the grievor was unable to rest and pursue such activities after his heart attack,” said Steinberg.
“As noted above, the employer argued that granting sick leave to (Wood) on these facts would be inconsistent with the purpose of sick leave which is to provide income to an employee who is expected to be at work but cannot attend due to illness. Since the grievor was on vacation, he was not expected to be at work,” said Steinberg.
“However, as the union pointed out, item 6.5.3 is an exception to that general rule in the limited case of an employee who suffers a serious illness while on vacation.”
Reference: Ontario Power Generation and the Power Workers’ Union. Larry Steinberg — arbitrator. Jonathan Maier for the employer. Ian Roland for the employee. June 25, 2018.
