In the Matter of an Arbitration Pursuant to the Labour Relations Act, S. O. 1996

Transcription

1 In the Matter of an Arbitration Pursuant to the Labour Relations Act, S. O Between: MENTAL HEALTH CENTRE PENETANGUISHENE (formerly The Crown in Right of Ontario - Management Board of Cabinet) - and - (the Employer) ONTARIO PUBLIC SERVICE EMPLOYEES UNION On behalf of its Local 329 (the Union) Re: Vacation Credits - Grievances of Jeff Dunn and Martin Duquette A W A R D PAULA KNOPF - ARBITRATOR APPEARANCES: For the Employer: Jason Green, Counsel Jeffrey Miller For the Union: Eric del Junco, Counsel Al Donaldson The hearing of this matter was held in Barrie, Ontario on October 31, 2011.

2 The grievances allege that two long service employees were denied their entitlement to five days of vacation. There is no dispute about the relevant facts. However, the parties presented the case on the basis of two Agreed Statements of Fact that were not precisely the same. The undisputed facts are printed below in regular type and the italics represent additional facts that the Union wished to include, but were either not agreed to or considered irrelevant by the Employer. Those additional points have been included for the sake of completeness and because they are important to the parties arguments and responses: 1. On December 15, 2008, the Mental Health Centre Penetanguishene (the Hospital ) was divested from the Crown in right of Ontario to become a public hospital corporation pursuant to the Public Hospitals Act. Prior to this date, the bargaining unit members working in the Hospital were Crown employees. 2. At all relevant times to these grievances up to January 8, 2010, the parties were bound to the terms and conditions of the collective agreement between the Crown and OPSEU, which continued in full force and effect pending negotiation of a successor collective agreement between the Hospital and the OPSEU Local 329 (the old Collective Agreement ). 3. The jurisdiction of the arbitrator in these grievances arises from the Collective Agreement. 4. The grievor Jeffrey Dunn is a member of the OPSEU bargaining unit and has a seniority date of April 4, For the purposes of these grievances, Mr. Dunn had twenty-five (25) years of service with the Hospital in The grievor Martin Duquette is a member of the OPSEU bargaining unit and has a seniority date of November 14, For the purposes of these grievances, he had twenty-five (25) years of service with the Hospital in Prior to 2010, employees of the Hospital covered by the terms and conditions of this collective agreement who achieved twenty-five years of service were provided an additional five (5) days of vacation effective January 1 of the calendar year in which the milestone was achieved. The additional five days of vacation were provided pursuant to articles 46.4 and 46.8 of the Collective Agreement. 7. Specific examples of employees provided with these additional five days of vacation allotment in 2009 immediately include Pierre Gignac, Bruce Dunn and

3 2 Al Donaldson with seniority dates of August 4, October 19 and April 24, 1984, respectively. 8. Any delay after January 1, 2009 in the entering of these credits into the system was simply a function of delay in the entering of the credits into the employer s records by the employer s HR staff. 9. On January 8, 2010, the successor collective agreement between the Hospital and the Local Union was ratified and took effect (the Successor Agreement ). 10. From January 8, 2010 forward, the terms and conditions of the Successor Agreement applied to the employees of the OPSEU Local 329, including the grievors. 11. In the calendar year 2010, the grievors were entitled to and received a total of six (6) weeks vacation entitlement pursuant to the terms of the Successor Agreement. 12. The employer refused to credit these employees with the 25-year vacation bonus following January 1, 2010 and they each filed grievances in response to this refusal. The parties agree that my jurisdiction arises under the Collective Agreement in force from January 1, January 8, The relevant provisions of the Collective Agreement are: ARTICLE 46 - VACATIONS AND VACATION CREDITS 46.1 Effective January 1, 1992, an employee shall earn vacation credits at the following rates: (a) One and one-quarter (1-1/4) days per month during the first eight (8) years of continuous service; (b) One and two-thirds (1-2/3) days per month after eight (8) years of continuous service; (c) (d) Two and one-twelfth (2-1/12) days per month after fifteen (15) years of continuous service; Two and one-half (2-1/2) days per month after twenty-six (26) years of continuous service.

4 An employee is entitled to vacation credits under Article 46.1 in respect of a month or part thereof in which he or she is at work or on leave with pay An employee is not entitled to vacation credits under Article 46.1 in respect of a whole month in which he or she is absent from duty for any reason other than vacation leave of absence or leave of absence with pay An employee shall be credited with his or her vacation for a calendar year at the commencement of each calendar year An employee with over six (6) months of continuous service may, with the approval of the Deputy Minister, take vacation to the extent of his or her vacation entitlement and his or her vacation credits shall be reduced by any such vacation taken. For this purpose, an employee may include any continuous service as an employee in the Public Service of Ontario immediately prior to his or her appointment to the civil service Where an employee has completed twenty-five (25) years of continuous service, there shall be added, on that occasion only, five (5) days of vacation to his or her accumulated vacation entitlement Where an employee leaves the service prior to the completion of six months' service as computed in accordance with Article 46.7, he or she is entitled to vacation pay at the rate of four percent (4%) of the salary paid during the period of his or her employment An employee who has completed six (6) or more months of continuous service shall be paid for any earned and unused vacation standing to his or her credit at the date he or she ceases to be an employee, or at the date he or she qualifies for payments under the Long Term Income Protection plan as defined under Article 42, and any salary paid for unearned vacation used up to that time shall be recovered by the Employer from any monies owing to that employee....

5 4 The Submissions of the Parties The Submissions of the Union The Union argued that the Grievors right to the additional five days of vacation crystallized and/or accrued on January 1, 2010 under the old Collective Agreement. It was stressed that nothing in the successor Collective Agreement that came into effect upon ratification on January 8, 2011 took away any rights that had accrued under the old Collective Agreement. The Union also argued that the Employer s agreement to the wording of Paragraph 6 above captures what the Union is claiming in these grievances, that being that the Grievors be provided an additional five days of vacation effective January 1, 2010 because 2010 was the year that they would achieve 25 years of service, pursuant to Articles 46.4 and The Union stressed that this is a one off situation because it was acknowledged that the successor Collective Agreement altered the vacation entitlements. However, it was submitted that these Grievors should not be deprived of the vacation entitlements that existed before the successor contract came into force. The Union also suggested that the extrinsic evidence italicized above is relevant because it provides context and concrete examples of the agreed upon concepts. While asserting that the Collective Agreement is clear and unambiguous, it was also argued that the evidence reveals and resolves a latent ambiguity in favour of the Union s position. In support of these propositions, the Union relies upon Noranda Metal Industries v. International Brotherhood of Electrical Workers, Local 2345, [1983] 44 O.R. 529 (O.C.A.); Atlas Copco Exploration Products, a Division of Atlas Copco Canada Ltd. v. International Association of Machinist and Aerospace Workers, Local 2312 (Ortepi Grievance), [2011] O.L.A.A. No. 270 (R. Levinson). The Submissions of the Employer The Employer began by pointing out that the successor Collective Agreement improved the vacation entitlements for the bargaining unit. Under the Collective Agreement that governs this case, the year someone attained 25 years of service, s/he was entitled to

6 5 five weeks plus five days of vacation, totaling six weeks. Under the successor Collective Agreement, bargaining unit members are entitled to six weeks of vacation after 24 years of service. Therefore, the Employer pointed out that the Grievors actually became entitled to a total of six weeks' vacation in 2010 under the successor Collective Agreement ratified. Therefore, it was suggested that they are trying to unfairly capitalize on the anomaly of the ratification date to claim a further five days of vacation. More importantly, the Employer argued that this case turns on the language of Article 46 as a whole, not just subsections 46.4 and 46.8 in isolation. It was stressed that the Article first defines the basis upon which vacation credits are earned in a calendar year and then includes Article 46.4 as an administrative provision that sets out when and/or how the vacation credits will be designated. It was submitted that Article 46.4 does not take away from the fact that employees rights to any vacation time do not vest until they actually put in the time and/or reach the 25 th anniversary mark in order to actually earn the paid time off. The Employer argued that Articles and make this clear because if an employee takes vacation and is terminated before any vacation credits are actually earned, the Employer is entitled to recover any monies paid for unearned vacation that was taken. In the case of the Grievors, it was pointed out that their continuous service dates were April 4 and November 4, Therefore, it was stressed that they did not achieve 25 years of continuous service until April 4 and November 4, 2010 and therefore could not have earned the entitlement to the extra five days vacation until those dates. Since those dates fell only after the successor Collective Agreement came into force, it was argued that the Grievors have no right to make a claim under the old contract. While it was acknowledged that other employees records might have shown that they were credited with the additional five days of vacation in January of the year that they would achieve 25 years of continuous service, it was stressed that their entitlement did not accrue until they met the actual 25-year mark. Therefore, it was argued that the Grievors have suffered no losses and that the grievances should be dismissed.

7 6 The Union s Reply Submissions It was argued that the interplay of the old and the successor Collective Agreements entitles the Grievors to both the extra five days' vacation credit effective January 1, 2010, as well as the entitlements that arose under the successor Collective Agreement that came into effect on January 8, 2010, thereby giving them seven weeks' vacation entitlement in their 25th year of continuous service. It was submitted that no unfairness would be created because this would simply be a case of implementing the contractual agreements of the parties. The Decision It is easy to see why these grievances were filed. The Grievors anticipated achieving the anniversary of their 25 th year of continuous service in the calendar year The practice of the Employer, as codified in their Collective Agreement, was to credit vacations for a calendar year at the commencement of each calendar year. This practice included giving credit for the extra five days accruing to those who achieve 25 years of continuous service. Therefore, the Grievors would have legitimately have expected to see credit for the additional five days in early January This had been the case for their colleagues who had reached the 25-year mark before. However, a successor Collective Agreement came into effect on January 8, 2010, before either of the Grievors actually achieved 25 years of continuous service. That successor Collective Agreement gave them six weeks of vacation, the exact same amount of time they would have gotten under the old Collective Agreement, albeit earned on a different basis. Therefore, the question becomes whether the Grievors are also entitled to the additional five days that were provided for under the old Collective Agreement. If Articles 46.4 and 46.8 are read on their own, the Union s case could succeed. However, it is a basic principle of collective agreement interpretation that contracts must be read as a whole. Taking all the language of Article 46 into consideration, it becomes

8 7 clear that while an employee may be credited with his or her vacation at the commencement of a calendar year (46.4), the actual right to that vacation must be earned through service. This is made most clear in Article where it provides that any salary for unearned vacation used up before s/he ceases to be an employee shall be recovered by the Employer. This means that although the employee may be credited for the vacation entitlement at the beginning of the year, s/he still has to earn the right to that vacation allotment in accordance with Article There is no exception made for the extra five days allotted under Article It provides that an employee has an extra five days of vacation added to his/her accumulated vacation entitlement when s/he has completed twenty-five (25) years of continuous service. The language is clear; Where an employee has completed twenty-five (25) years of continuous service, there shall be added, on that occasion only, five (5) days of vacation... This does not say, and cannot mean, that someone becomes entitled to the extra five days at the commencement of the year that s/he may reach 25 years of continuous service. The person must actually achieve 25 years of continuous service before the extra five days becomes an entitlement. The fact that the Employer may credit those days administratively at the commencement of the calendar year is no different from the formula of days that are credited under Article All this makes complete sense because it allows employees to see their vacation entitlement and begin to plan and even take their vacations before they are actually earned through service (46.7), but also allows the Employer to recover the monies from any employees departing before the end of the year if any vacation is taken before it was actually earned. While other employees in previous years saw credits for those extra five days before they actually reached their 25 th anniversary date, their situation is very different from the Grievors. The other 25-year employees achieved the 25-year anniversary and their extra vacation entitlement in the year that they actually achieved 25 years of continuous service. The Grievors did not achieve 25 years of continuous service while Article 46.8 was in place. They reached that achievement when the successor Collective Agreement was in force and Article 46.8 had been removed. The irony is that the successor Collective Agreement gave them the same total weeks of vacation in their

9 8 25 th year as all their colleagues under either Collective Agreement. Therefore, they truly lost nothing when the new contract came into force. For all these reasons, the grievances must be dismissed. Dated at Toronto this 9 th day of November, "Paula Knopf" Paula Knopf - Arbitrator