Union said employer couldn't unilaterally make the change but language of policy said otherwise
An Ontario company is entitled to change its long-standing practice of accepting notes from chiropractors as medical notes, the Ontario Arbitration Board has decided.
Pepsico Foods Canada Inc. had an illness and accident plan that provided for benefits for employees who were unable to work because of illness or injury. The plan was funded and administered by Pepsico. To receive benefits, an employee had to provide medical evidence of her inability to work from a “qualified physician.” For a long time, Pepsico accepted chiropractors as qualified physicians and accepted medical evidence from them.
However, in early 2007, the company stopped accepting chiropractors as qualified physicians and their notes as proper medical evidence for illness and injury benefits. The union filed a grievance, saying Pepsico couldn’t unilaterally change its practice after it had remained the same for several years and through several collective agreements. Though the illness and accident plan wasn’t a part of the collective agreement, the agreement did refer to it, saying it would stay in force until the collective agreement expired. The collective agreement also specified how much illness and injury benefits would be.
The board agreed the illness and accident plan were incorporated by reference into the collective agreement. However, the language of the plan didn’t specifically include chiropractors as qualified physicians and it stipulated Pepsico could “implement, revise or discontinue certain practices relating to the administration of your benefits.” It found stopping the practice of accepting chiropractors’ notes didn’t change the benefits themselves, which had been incorporated into the collective agreement, but rather how they were administered. The board also found that even though accepting notes from chiropractors was a long-term practice, the language of the plan freed it to make changes as it saw fit.
“The means of applying for and accessing the benefits in the plan is a process element of the plan and not a substantive benefit, in and of itself,” the board said. “It was an administrative practice which the company could change pursuant to the express reservation of the right to do so.” See Pepsico Foods Canada Inc. v. Quaker Oats Employees Independent Union, 2007 CarswellOnt 8413 (Ont. Arb. Bd.).
Pepsico Foods Canada Inc. had an illness and accident plan that provided for benefits for employees who were unable to work because of illness or injury. The plan was funded and administered by Pepsico. To receive benefits, an employee had to provide medical evidence of her inability to work from a “qualified physician.” For a long time, Pepsico accepted chiropractors as qualified physicians and accepted medical evidence from them.
However, in early 2007, the company stopped accepting chiropractors as qualified physicians and their notes as proper medical evidence for illness and injury benefits. The union filed a grievance, saying Pepsico couldn’t unilaterally change its practice after it had remained the same for several years and through several collective agreements. Though the illness and accident plan wasn’t a part of the collective agreement, the agreement did refer to it, saying it would stay in force until the collective agreement expired. The collective agreement also specified how much illness and injury benefits would be.
The board agreed the illness and accident plan were incorporated by reference into the collective agreement. However, the language of the plan didn’t specifically include chiropractors as qualified physicians and it stipulated Pepsico could “implement, revise or discontinue certain practices relating to the administration of your benefits.” It found stopping the practice of accepting chiropractors’ notes didn’t change the benefits themselves, which had been incorporated into the collective agreement, but rather how they were administered. The board also found that even though accepting notes from chiropractors was a long-term practice, the language of the plan freed it to make changes as it saw fit.
“The means of applying for and accessing the benefits in the plan is a process element of the plan and not a substantive benefit, in and of itself,” the board said. “It was an administrative practice which the company could change pursuant to the express reservation of the right to do so.” See Pepsico Foods Canada Inc. v. Quaker Oats Employees Independent Union, 2007 CarswellOnt 8413 (Ont. Arb. Bd.).
