The employer deducted sick credits from the grievor while she was on a partial schedule after an accident. The employer argued that she was not on a Graduated Return-to-Work (GRTW) program. The arbitrator found that the GRTW was not defined in the contract and that she was effectively on an GRTW just the same.
Eleven months after undertaking a graduated return to work, a postal worker discovered by chance that the employer had been dipping into her sick leave credits to top up her wages and compensate for her reduced hours.
The union grieved.
Following a three-week absence for medical reasons in April 2010, postal worker D.L. returned to work on a reduced schedule.
Initially working six-hour shifts, D.L. began to incorporate two eight-hour shifts into her weekly schedule beginning in October 2010.
In January she added another eight-hour shift and in February a fourth. On March 7, 2011, D.L. was back to working five eight-hour shifts per week.
Throughout this period, D.L. was paid her regular salary based on eight-hour shifts. However, the employer was making up for the shortfall in D.L.’s hours by deducting the balance from her sick leave credits. The deductions were made on a one-for-one basis. To account for her regular pay, the employer was making up D.L.’s eight-hour day with six working hours plus two hours from her sick leave.
No deductions on pay statements
Both D.L. and the union were aware that D.L. was being accommodated. However, neither was aware that her wages were being topped up with deductions from her sick leave credits. The employer did not communicate what it was doing. There were no notations or deductions on D.L.’s pay statements to indicate what the employer was doing.
D.L. became aware of the deductions in March 2011 when she requested a printout of her vacation entitlement.
The union said that the employer had improperly deducted D.L.’s sick leave credits. Collective agreement provisions on the deduction of sick leave credits were clear. They excluded deductions of sick leave credits to top up pay where workers were engaged in “progressive reintegration” and who worked shifts of six or more hours, the union said.
The employer argued the grievance was untimely. The employer also said that the exclusion of sick leave deductions did not apply to D.L. because she was not in a “Graduated Return To Work” (GRTW) program.
The Arbitrator disagreed.
The grievance was not time-barred by the collective agreement’s 25-day time limit for filing a grievance. The clock on the time limit started when the employee first became aware of the action or circumstances giving rise to the grievance, the Arbitrator said.
In this case, the employer never communicated in any way to either the union or to D.L. about the deductions it was making. The clock did not start when the accommodated schedule began as argued by the employer but, rather, when D.L. became aware of the deductions.
The Arbitrator also rejected the employer’s assertion that D.L. did not qualify for the exclusion from sick leave deductions because she was not in a properly constituted or documented GRTW program.
Progressive reintegration
The collective agreement made no reference to GRTW programs, the Arbitrator said. Nor did the collective agreement define what it meant by “progressive reintegration.”
“Nevertheless, [D.L.] was undoubtedly engaged in a form of ‘progressive reintegration.’ She started by working weeks of five six-hour shifts; then went to two eights and three sixes; then to three eights and two sixes; then to four eights and one six; and then, back to her normal schedule of five eight-hour shifts per week.”
Even though there was not one single, comprehensive document outlining her program, the elements of the correspondence between D.L. and the third-party insurance provider added up to sufficient documentation to satisfy the requirements of the collective agreement.
“Article 22.10(b) [of the collective agreement] applies specifically to ‘progressive reintegration.’ If the employee works for six or more hours, the employee is still to be paid for eight, with no deduction of sick leave credits. If the employee works between two and six hours, there is a half-day deduction from sick leave credits; and, if the employee works less than two hours, there is a full day deduction from sick leave credits.”
While the union sought redress for the entire period of the reintegration program, there was in the collective agreement a six-month cap on the application of Article 22.10(b).
“The grievance is in substance a claim for the application of Article 22.10(b); and, that provision does indeed apply in the circumstances of this case. I will be upholding the grievance, and ordering relief for the first six months in accordance with the provision,” the Arbitrator said.
