Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2014 ARBITRATION AWARDS September 21, 2015 forced to reduce its staff and, as a result, offered those laid-off workers several options, includ- ing a severance pay package, op- portunities to fill existing vacant positions, bumping a junior em- ployee or remaining on the recall list. H accepted the severance offer and requested continuation of his benefits, as per the collective agreement. However, the em- ployer responded that by choos- ing the severance option, he had forfeited his employment and as he was not being laid off, contin- uation of benefits was no longer an option. Unifor filed a policy grievance, arguing the collective agree- ment's layoff clause dictates an employee, having received no- tice of layoff, is clearly entitled to continuation of benefits accord- ingly as a "laid-off employee", whether choosing to maintain recall rights or accepting sever- ance. "It makes no sense to allow an employee to continue benefits, and then take early severance, but to disentitle the employee to benefits if severance is chosen at the time of layoff," the union said. Unifor also produced 10 ex- amples between 2004 and 2010 of past practice that supported its position. They showed that where standard options, includ- ing acceptance of layoff and re- call rights and severance, were offered to employees, they were allowed to continue their ben- efits, with the option of accepting maintenance of recall rights. The employer too said the collective agreement backed its position. However, it argued the collective agreement clearly dis- tinguishes between an employee "to be laid off " and "a laid-off em- ployee" and that the provision only provides the possibility for the continuation of benefits to the latter. That the language was different was deliberate, the em- ployer said. According to the employer, when an employee "to be laid off " chooses severance, based on the contract, it results in the employ- ee being terminated, as opposed to laid off — therefore, such an employee is no longer consid- ered a "laid-off employee" and thus cannot request a continua- tion of benefits. Being a policy grievance, arbi- trator Norm Jesin said he would make no determination regard- ing H's particular case, but that he agreed with the employer. "(The collective agreement) deliberately uses different lan- guage in entitling benefit con- tinuation to 'laid-off employ- ees'," Jesin said in the decision. "That language clearly ap- plies to employees whose status will continue as laid-off em- ployees after implementation of the layoff. "Because an employee who accepts severance also accepts the termination of employment, that employee can no longer be considered a laid-off employee under the article and is not en- titled to request benefit continu- ation." Reference: Ontario Educational Authority and Unifor Local 72M. Norm Jesin — arbitrator. Douglas Wray for the union, Henry Dinsdale for the union. Sept. 14, 2015. University employee's sick leave endures layoff IN AUGUST 2013, Garth Ar- senault chose to be laid off from his position at the University of Prince Edward Island rather than terminate his employment. In October 2014, he was re- called to another position and placed on probation. Addition- ally, the employer refused to rec- ognize his continued service for the purpose of vacation and sick leave credits. Arsenault's union, the Cana- dian Union of Public Employees (CUPE) Local 1870, filed a griev- ance on his behalf. Following the grievance, the employer removed the proba- tionary period and reinstated Arsenault's previous vacation rate, as per the parties' collec- tive agreement. However, the employer denied his claim of sick leave accrual. While vacation accrual is ad- dressed by the collective agree- ment, the employer said, the ac- crual of sick leave credits is not. As a result, the employer argued Arsenault was not entitled to any of the 101 1/6 sick leave days showing as accrued as of his day of layoff. Furthermore, the employer argued that to provide Arsenault with the sick leave accrual would require reading into the collec- tive agreement words in support that are not found. The union, however, argued that sick leave accrual — like va- cation accrual — is an earned benefit that endures through a layoff under the agreement. This is further illustrated, the union said, by Arsenault's choice to be laid off rather than to terminate the employment relationship. Because of this distinction, the layoff itself cannot be interpreted as an end to Arsenault's employ- ment. As such, his sick leave ac- crual should stand. Arsenault himself testified he was given no reason as to why his sick leave accrual was not re- tained on recall and further testi- fied that he at no time made any agreement with the employer that he was not so entitled. The arbitration board — made up of chair Robert D. Breen, em- ployer nominee Ron MacLeod and union nominee Bob Crock- ett — ruled Arsenault's layoff did not constitute a severing of his employment relationship with the university, as evidenced by his remaining on a recall list for five years. "The employer here has con- ceded to Arsenault's accrued va- cation rate on recall, an accumu- lated benefit at a rate of a number of working days per calendar months, as is sick leave, as well as a waiver of probation," Breen wrote in the ruling. "Arsenault did not start afresh for either his vacation rate or on a probation. So too, he should not be seen to start afresh for his sick leave accrual." The board found Arsenault's sick leave accrual was an earned right under the parties' collec- tive agreement on his recall. The grievance was allowed and Arse- nault's 101 1/6 days of sick leave credit were ordered reinstated as at the date of his recall. Reference: The University of Prince Edward Island and the Canadian Union of Public Employees. Arbitration board: Rob- ert D. Breen, chair; Ron MacLeod, employer nominee; Bob Crockett, union nominee. Stephen Carpenter for the employer, Bill McKinnon for the union. May 26, 2015. < from pg. 1 Sick leave accrual not addressed by collective agreement. Difference in collective agreement language was deliberate.

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