Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS July 4, 2016 ers (ETSCs) worked in the same department, but only the ETSCs were offered overtime. The Canadian Union of Public Employees (CUPE), Local 543, claimed this practice violated the collective agreement, which stated overtime "be distributed equitably among employees in the same division, within the same classification, who are performing similar duties." The union said the ESCs and ETSCs were in the same division, within the same classification and performed similar duties, so the ESCs should be offered overtime in equal proportion to the ETSCs. But the city said the two groups were employed in different divi- sions, performed different duties and were not interchangeable in their jobs. Further, it said the unique demands of the work of the ETSCs required that overtime be granted at certain times to get their work completed. Both groups had the same classi- fication and job postings. But there had been no interchange between the ETCs and ETSCs part because of different computer programs and confidentiality concerns. In addition, while both areas offered employment counseling, there were "nuances and differ- ences in the services offered, the rigours of the reporting require- ments and the targets imposed by the funding ministries," said arbi- trator Lyle Kanee. Given the "dearth" of evidence in defining "division" and the broad- er implications of the definition, Kanee did not determine whether the two groups were in the same division. However, he did conclude they performed similar duties, even if they weren't identical. As for the issue of equitable distribution of overtime, the ES- TCs were granted overtime when additional work was required to close out or establish the status of client files, in order to meet target and reporting requirements im- posed by the ministry, said Kanee. ESCs did not have as rigorous targets or reporting requirements and there was no evidence that when overtime was granted to ES- TCs, there were similar demands on ESCs to complete work. "The ESCs could not have effi- ciently performed the work of the ESTCs. The caseworkers in the two areas are not interchangeable. The purpose of granting overtime to the ESTCs would have been undermined if the overtime was granted to ESCs with an expecta- tion that they would perform the work of ESCTs," he said. Therefore, it was fair and eq- uitable for the city to grant over- time to ESCTs, and not to ESCs, said Kanee, who ruled the city did not violate the agreement and the union's grievance was denied. Reference: The Canadian Union of Public Employees, Local 543, and the City of Windsor. Lyle Kanee — arbitrator. Stephen Krashinsky for the union, Susan Hirota for the employer. June 6, 2016. Grievance over sick leave ends well for union A dispute over sick leave entitle- ment went in the union's favour recently when the arbitrator con- cluded a provision in the collec- tive agreement was being violated by the employer, Brockville Men- tal Health Centre in Ontario. The provision concerned the calculation of sick leave entitle- ment when an employee returned to work at some point during the calendar year, following a period of absence that included the start of the year. The provision gave an an- nual entitlement of 28 days on Jan. 1 each year, for active employees. If an employee was off work and returned to work during the year, the union — the Ontario Public Service Employees Union, Local 439 — said the employee was enti- tled to the full annual entitlement while the hospital said the entitle- ment was prorated for the time re- maining in the calendar year. Article 21.03 of the collective agreement stated: "Employees will receive 100 per cent of the basic sal- ary for the first 28 working days of sickness or disability in a calendar year. New employees will receive a prorated amount on the basis of 2.33 days per month remaining in the calendar year since the day of hire but in any event not less than 7 days in the first year of employ- ment… The 28 days are reinstated each January 1st, for active employ- ees, and are not cumulative from year to year." The employer also relied on article 13.08 of the agreement, which read: "During an unpaid absence exceeding 30 continuous calendar days, credit for service for purposes of salary increments, vacation, sick leave, or any other benefit under any provision of the collective agreement or elsewhere, shall be suspended; the benefits concerned appropriately reduced on a pro-rata basis and the em- ployee's anniversary date adjusted accordingly… "It is further understood that during such absence, credit for se- niority shall be suspended and not accrue during the period of ab- sence. Notwithstanding this pro- vision, seniority shall accrue for a period of 30 months if an employ- ee's absence is due to disability re- sulting in WSIB or LTD benefits." But the union said article 13.08 had no relevance to 21.03 as the former dealt with absences gener- ally while the latter dealt with sick leave entitlements specifically. The union also said article 13.08 dealt with unpaid leaves of ab- sence, when sick leave was a paid absence, whether paid directly by the employer or by the insurer. The employer argued there was no conflict between the two pro- visions and they should be read consistently. It said an employee on short-term or long-term dis- ability was on an approved unpaid leave of absence because the ben- efit is paid by the insurer. The union cited the provision that set out how seniority was ac- cumulated, stating "seniority and service will continue to accumu- late during any approved leave that does not constitute a break in ser- vice (and) seniority for regular part- time and casual employees shall accumulate based on actual hours worked, exclusive of overtime." By contrast, the sick leave en- titlement of 28 days was not depen- dent on service (as seniority was for full-time employees), nor hours worked (as seniority was for regular part-time and casual employees), but was an annual entitlement that arose as soon as an employee re- turned to work, said the union. Both parties decided to include a prorating provision for new em- ployees, but they did not do so for existing employees, like Jackson. "This difference is important for the proper interpretation of the provision. The parties' specific choice on the matter leads to the conclusion that they intended that if an employee becomes active during the course of a calendar year, the employee must be given the full 28-day entitlement," said arbitrator Christopher Albertyn. "There is no reason why an em- ployee should get less sick leave entitlement depending upon when they are off on sick leave during the year because, as the union argues, the 28-day paid entitlement is not dependent on service, nor on hours worked, and nor on when one's illness absence occurs. As long as an employee is active during the calendar year, they are entitled to their 28 days of paid sick leave." Accordingly, active employees (but not new employees) are enti- tled to the full 28-day payment, ir- respective of when they return to work, he said, adding article 13.08 does not alter this conclusion as sick leave is not unpaid leave. "Whether the payment is from the employer directly or from the insurer, the employee is on a paid leave. Therefore, article 13.08 is intended for a different purpose, not to address the situation in- volved in this case." As a result, the union's griev- ance around sick leave entitle- ment was upheld. Reference: Brockville Mental Health Centre and the Ontario Public Service Employees Union, Local 439. Christopher Al- bertyn — arbitrator. Marie-Pierre Pilon for the employer, Michael Fisher for the union. June 6, 2016. < Arbitration pg. 1

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