70-year-old Toronto hospital worker wins back benefits
At a hospital in Toronto, an employee was awarded benefits despite being past the expected retirement age when such benefits would have typically been terminated.
James Nijmeh, a 70-year-old orthopedic technician at Scarborough Hospital, was cut off from health and welfare benefits in May of 2011. His union, the Canadian Union of Public Employees (CUPE) filed both an individual and policy grievance on his behalf.
It is not illegal in Ontario for employees aged 65 and up to be denied the same coverage that younger employees receive. In 2006, mandatory retirement was quashed, though an exception was made for employment-related benefits — while employees cannot be forced to retire at 65, they can be denied the same benefits that they had been receiving.
The matter of benefits was left to the individual employment contracts and collective agreements.
According to CUPE, in this particular case, neither the collective agreement nor the benefits package referred to any such limitation.
"In the absence of any age limitation in the language of the collective agreement there can be no effective age limitation in the language of the plan," the union said, adding that the agreement should have clear and unambiguous language.
As such, the union said the hospital should be found to be in breach of the collective agreement by failing to provide a plan of insurance that delivers the relevant benefits to employees without regard to age.
On the other hand, the hospital argued that such distinctions are expressly permitted by statute and are, in fact, quite common.
Further, no bargaining unit member had ever worked past 65. As the hospital saw it, there was a "shared understanding" between the parties that these benefits would not continue.
"It is not included in the collective agreement as a marker for the hospital’s retirement policies or practices," counsel for the hospital said.
But arbitrator Russell Goodfellow agreed with the union.
"This is something of an unusual case. It concerns a grievance that was filed in 2011 that asserts that the hospital is failing to live up to collective agreement language that has been in place since 1993 that refers to a 1993 document… in an era in which the underlying statute law and the related factual practices at the hospital were entirely different from what they are at present," Goodfellow said.
Reference: Scarborough Hospital and the Canadian Union of Public Employees (CUPE) Local 1487. Russell Goodfellow — arbitrator. Rob Weir for the hospital, Mark Wright for the union. Nov. 6, 2014.
