In the Matter of an Arbitration
Under s.48 of the Labour Relations Act, 1995
HUMBER RIVER HOSPITAL
ONTARIO NURSES’ ASSOCIATION
(Gr. WS17-95 Re: Reimbursement for BUP Sick Pay)
Before: Eli A. Gedalof, Sole Arbitrator
- 1. This grievance concerns the extent of the Association’s obligation to reimburse the Hospital for 50% of the Bargaining Unit President’s (“BUP”) salary when the BUP is on a short-term sick leave. The Local Appendix to the Collective Agreement between the parties contains a paid leave provision for the BUP which, when invoked by the parties, provides that the BUP shall “remain on the Hospital payroll in order to maintain continuity of coverage with benefits and pension entitlements as are presently applicable….” The provision also provides that the Hospital will bill the Local “on a quarterly basis for the portion (50% of the annual salary) to be paid by the Association for the period of her or his term.”
- 2. In 2017, the BUP took a sick leave, and the Hospital invoiced the Association for 50% of his salary drawn during the quarter that included the sick leave. The Association grieved that it should not be required to reimburse the Hospital for any portion of the paid sick leave. In broadest terms, the Association maintains that paid sick leave is an accrued benefit that the BUP is entitled to draw upon. Paid sick leave is not, argues the Association, “salary” within the meaning of the BUP leave provision. The Hospital rejects this interpretation of the BUP leave provision. It argues that the BUP is on a full time leave from her or his employment responsibilities and that during the period of that leave the Hospital’s obligation is to pay 50% of the salary. In this context, the salary paid to the BUP while off sick continues to be a portion of her or his “annual salary”, and the Association continues to be responsible for payment of 50% of that salary.
- 3. This is primarily a case of contract interpretation. Each party called a witness to discuss how the provision has been applied and to provide some background to the grievance before me. However, as will be clear, the grievance ultimately turns on the terms of the parties’ agreement.
- 4. In 2016/17 the BUP took two periods of sick leave. There is no dispute that the Hospital did not seek reimbursement for 50% of the wages paid to the BUP during the period of the first leave, but did seek reimbursement for the period of the second.
- 5. The Association called as a witness its local treasurer, Nancy Popp. Ms. Popp has overall responsibility for the local’s finances, including dealing with the invoices for reimbursement of 50% of the BUP salary. Ms. Popp explained the process she goes through when she receives an invoice from the Hospital, verifying the time period and the amounts and obtaining the necessary sign-offs.
- 6. Popp introduced the invoices and documents reflecting the fact that the BUP had been off on sick leave in 2016 for a period of time, and that the Hospital had not billed the Association for its share of his salary during that period. In October 2017, however, following a subsequent sick leave, Ms. Popp received an invoice from the Hospital seeking recovery of 50% of the salary paid to the BUP for the period July 1, 2017 to September 30, 2017. Ms. Popp consulted with the Association and ultimately paid the bill, but did so without prejudice to the Association’s position that it should not have to reimburse the Hospital for the period of the sick leave. The hospital responded that Article E2 of the Local Appendix did not speak to any difference in billing when sick leave is taken, and therefore declined to revise the invoice.
- 7. In cross-examination, it was put to Ms. Popp that in 2014 the BUP had also taken sick leave, and that the Association had been billed for and had paid its 50% contribution for that period. Ms. Popp had no reason to dispute this proposition, and confirmed that it was possible she would not be aware of short-term sick leaves since there is no obligation that she be informed of them. It was also put to Ms. Popp that the reason that the Association was not billed for the period of the 2016 sick leave was that the Hospital had made a “special agreement” to pay 100% of the salary for that period, and not to bill the Association. Ms. Popp had no knowledge of the existence of such an agreement.
- 8. The Hospital called Diane Pestrin, who is currently employed as a Senior Human Resources Business Partner. In her prior roles as an Employee Labour Relations Specialist, Ms. Pestrin was responsible for calculating and processing the invoices for reimbursement of the BUP salary. According to Ms. Pestrin, the Association was routinely billed to reimburse 50% of the salary paid out during periods the BUP was on sick leave, and routinely paid those bills. The only exception was for the quarter of October 1 to December 31, 2016, when she was specifically instructed by the Manager of Human Resources not to send a bill. Ms. Pestrin was not aware of why she was so instructed, but followed the direction and did not invoice for that quarter.
THE COLLECTIVE AGREEMENT
- 9. The parties referred to the following provisions in the Local Appendix to the Collective Agreement:
ARTICLE E – LEAVES OF ABSENCE
- 1 The cumulative total leave of absence for Association business shall be one hundred and fifty (150) days (including both full-time and part-time nurses) during the calendar year subject to the following conditions
(a) The Association will notify the Hospital in writing, at least two (2) weeks in advance, where possible, of the requested leave. However, the Association will endeavour to give more than 2 weeks’ notice where possible. The Hospital will provide an answer to the request within two (2) weeks of the request unless the request was made with less than two (2) weeks’ notice.
(b) No more than two (2) nurses shall be absent from one area per site at the same time.
(c) The granting of leave shall be subject to the staffing requirements of the Hospital. The Hospital shall not be unreasonable in denying a request on this basis.
In addition to the leave provided in E.1 above and where the parties agree in writing to an arrangement for a Local Coordinator/President, the following terms shall apply:
E.2 (a) The Bargaining Unit President is to be on full leave of absence with the annual salary for such leave being maintained by the Hospital. The Bargaining Unit President will be scheduled to work Monday through Friday for the period of her/his term, except as provided under E.2 (d). On completion of her/his term of office, the Bargaining Unit President shall return to her/his previous position, which includes rotation on the nursing unit.
(b) The Bargaining Unit President is, however, to remain on the Hospital payroll, in order to maintain continuity of coverage with benefits and pension entitlements as are presently applicable. The Bargaining Unit President remains a member of ONA bargaining unit with all of the rights and responsibilities that are provided under the Collective Agreement. For clarity, seniority and service shall continue to accrue.
(c) The Hospital will bill ONA Local 068 on a quarterly basis for the portion (50% of the annual salary) to be paid by the Local Association for the period of her or his term.
(d) The Bargaining Unit President is to retain her/his nursing unit as a home base. The Bargaining Unit President may work on the Home unit for up to four (4) weeks per year as mutually agreed by the Bargaining Unit President and her/his manager. The reporting relationship shall be through the Employee and Labour Relations Department except when the Bargaining Unit President works on her/his home unit at which time the reporting relationship shall be through the home unit manager.
(e) The above provisions are to exist for the period of her/his term of office. Notwithstanding the above, either party may terminate the agreement within sixty (60) calendar days’ written notice at which time the Local/President shall return to her/his home unit.
(f) The Employer will provide up to six (6) days per month total, with pay for the local Association Executive or their designate(s).
However, pursuant to Article E.2, in the event that there is a full-time Coordinator/President arrangement in place, the number of paid executive leave days will be reduced from six (6) to four (4).
- 10. The general sick leave provision is found at Article 12 of the Hospital Central Agreement, the relevant portion of which reads:
12.01 The Hospital will assume total responsibility for providing and funding a short-term sick leave plan at least equivalent to that described in the 1980 Hospitals of Ontario Disability Income Plan brochure. Effective January 1, 2006, new hires will be covered under the 1992 Hospitals of Ontario Disability Income Plan.
- 11. The relevant portion of the applicable OHA Benefit Plan (a.k.a. HOODIP) brochure for Full-Time Employees provides:
If you become Totally Disabled as a result of illness or injury…you will receive Sick Pay benefits that are paid by your employer.
The Sick Pay benefit is paid by your employer as salary continuance after you meet the qualifying period….
- 12. The parties also referred to Article 11 of the Hospital Central Agreement, which addresses payment of benefits during several different kinds of leave in a variety of different ways depending on the type of leave, but which does not specifically address the BUP leave provided for under the Local Appendix in issue here.
The Association’s Argument
- 13. The Association argues that short-term sick leave is a “benefit”, and that in accordance with Article E.2(b), the BUP is entitled to receive that benefit while on a full leave of absence, as that benefit is “provided under the Collective Agreement.” Under the Collective Agreement, the Hospital assumes “total responsibility for providing and funding a short-term sick leave plan…”. Read together, the Association argues that as a matter of straightforward contract interpretation it is clear that the Hospital is responsible for paying all of the BUP’s salary while on short-term sick leave, and is not entitled to recover half the payment from ONA.
- 14. Further, the Association argues there is a distinction between “salary”, which it defines as “payment for services rendered”, and sick pay, which is a distinct benefit intended to “replace” salary. The Association relies on excerpts from Brown and Beattyand the decision of Arbitrator Burkett in Participating Hospitals v. O.N.A., 2002 CarswellOnt 5079 in support of this distinction. The Association argues that if the parties had intended to treat the sick leave benefit differently than the other benefits for which the BUP is eligible, they would have been required to do so explicitly. Neither, argues the Association, does Article 17 of the Hospital Central Agreement, which addresses many other aspects of employee entitled to Health and Welfare Benefits, restrict the availability of the short-term sick leave benefit while on BUP leave.
- 15. In the alternative, the Association argues that if I find that the language is ambiguous, I ought to look to past practice and find that it supports full payment by the Hospital. While the Association acknowledges that the practice has not been consistent, it relies on the full payment of the BUP’s prior sick leave in 2016, and the absence of any specific evidence that this payment was made in accordance with any special arrangement.
The Hospital’s Argument
- 16. The Hospital argues that in accordance with the established rules of contract interpretation, the provisions of the Local Appendix, the Hospital Central Agreement and the sick leave plan, must all be read together. These terms should be given their plain and ordinary meaning unless doing so would be absurd or inconsistent with the overall scheme and structure of the agreement. The hospital argues that a proper interpretation supports the conclusion that payments to the BUP while off sick leave are no different than payments made while on vacation or holiday, of which the obligation to reimburse is not in dispute.
- 17. In particular, the Hospital emphasizes that the BUP is on a full-time leave of absence, during which the Association is responsible for paying “50% of the annual salary”. Under the terms of the sick pay plan, sick pay is “salary continuance”, not a premium based benefit for which the employer would be solely responsible under the terms of Article E2 of the Local Appendix. Article 11 of the Central Agreement shows that the parties may adopt any number of approaches to distributing the costs of various benefits during the course of different types of leave. The requirement that the Association pay 50% of the BUP’s annual salary, including while on short-term sick leave, is just one more such arrangement, entirely consistent with the inconsistent approach taken by the parties.
- 18. In support of its approach to interpreting the contract the Hospital relies on Maple Leaf Consumer Foods v. U.F.C.W., Local 175, 2011 CarswellOnt 7142 (Surdykowski) (“Maple Leaf”) and York County Hospital v. O.N.A., 1988 CarswellOnt 3804 (Burkett)(“York County Hospital”). The BUP, argues the Hospital, is on a full time leave in order to carry out the functions of the bargaining unit present: that is his primary affiliation and Article E2 requires that the Association pay half his salary during such a leave. He is not, argues the Hospital, an active employee on sick leave from performing work for the Hospital.
- 19. The Hospital argues that the most analogous authority is found in Mount Sinai Hospital and ONA, Re, 2017 CarswellOnt 20318 (Steinberg) (“Mount Sinai”). This case concerned a claim by the Association that it was not required to reimburse the hospital for sick days, holidays and vacation days where a member was on a leave of absence under the Board of Directors Leave provision at Article 11 of the Hospital Central Agreement. The arbitrator found that the purpose of that provision was to render the leave cost neutral for the hospital, and that where an employee has not performed any work for the hospital for an extended period of time it cannot be that the hospital is required to pay the costs of “vacation, holidays and sick time without reimbursement from the Association.” (at para 77). The Hospital argues that the purpose of the BUP leave provision is to share the cost 50/50 between the parties, while maintaining the BUPs access to all of his benefits through maintenance of premiums by the Employer.
- 20. With respect to the Association’s past practice argument, the Hospital maintains that with a single exception the evidence demonstrates that it has billed the Association for 50% of sick days. In this light, the Hospital argues that the past practice supports its own position, but in any event does not constituted the kind of clear and consistent evidence that would be required to support the Associations interpretation.
- 21. There is no dispute that the appropriate approach to interpreting the collective agreement is as articulated at paragraph 18 of Maple Leaf:
The fundamental rule of interpretation for collective agreements is the same as for commercial contracts and statutes: the words used must be given their plain and ordinary meaning unless it is apparent from the structure of the provision or the collective agreement read as a whole that a different or special meaning is intended. All words must be given meaning, and different words are presumed to have different meanings, unless this would lead to a result that is absurd or inconsistent with the overall scheme and structure of the agreement.
In all cases the goal is to give effect to the intended agreement of the parties, as that intention is reflected in the words of the agreement they reached.
- 22. Applying these principles of interpretation, I find that the Hospital’s interpretation must prevail. I reach this conclusion for several reasons.
- 23. Article E2 is the BUP leave provision, and therefore the starting place for my analysis. In accordance with Article E2(a), the BUP leave is a “full leave of absence”, during which the Hospital must maintain her or his “annual salary”. In accordance with Article E2(b), the BUP is to remain on payroll specifically for the purpose of maintaining “continuity of coverage with benefits”. In accordance with Article E2(c), the Local is required to pay 50% of the BUP’s “annual salary”, “for the period of her or his term.” The parties join issue over whether pay to the BUP while of sick is “salary” within the meaning of Article E2(c), or whether those payments are excluded from “salary” and instead constitute a draw upon an accrued benefit.
- 24. There are several indicators in the provisions of E2 that support the Hospital’s interpretation.
- 25. It is clear that BUP leave is a “full” leave of absence that extends for the duration of the BUP’s term in office. This provision is distinct from other leave provisions, where the individual is released from their regular duties to perform discrete tasks, while continuing to carry out their employment responsibilities generally. During the period of the BUP leave, the BUP is clearly working full time on behalf of the Association, not the Hospital. This is not to say that the Hospital does not benefit from having a full time representative of the bargaining unit available to deal with issues arising under the Collective Agreement, but the BUP is nonetheless on a full leave from their employment responsibilities with the Hospital for their term of office. They do not, therefore, cease to be on such a leave when they take one or more days off work due to illness during the course of that term. In this narrow regard, the circumstances of the BUP leave are analogous to the circumstances of a vacation leave as addressed by arbitrator Burkett in York County Hospital.
- 26. York County Hospital also dealt with the circumstance of an employee falling sick while on an approved union leave, whose salary and benefits the hospital was required to continue. However, the provision in issue in that case required the Association to reimburse the hospital for the “for the full cost of such salary and applicable benefits”. I do not therefore suggest that the interpretive issue in the instant case is identical. Nonetheless, arbitrator Burkett’s analysis is illuminating. The Union argued that as the grievor was unable to work due to illness, she met the criteria for sick leave under the HOODIP plan, and should therefore have been placed on a sick leave for the duration of her illness (at the employer’s expense) rather than a union leave (for which the Association was required to reimburse the employer). Arbitrator Burkett identified a number of scenarios in which an employee who fell ill could cancel a union leave, maintain their status as an active employee, and take advantage of the employer funded sick leave provision. For example, if the employee fell ill before the commencement of the leave such that they would not be able to serve the function of taking the leave in the first place, the arbitrator found no reason they could not cancel the union leave and receive sick benefits in the usual course. However, where an employee falls ill for a period of time during the course of a leave and then continues with that leave, arbitrator Burkett found that as a matter of common sense, the parties could not have intended that that employee receive sick pay “as an active employee”. In this latter example, the employee’s “primary affiliation” during the period of illness is with the union leave, and not the sick leave (at para 11).
- 27. Applying this analysis to the leave provision at issue in the instant case, the conclusion that the BUP’s primary affiliation with the union leave is even more clear. Under the terms of the Local Appendix, a BUP leave is defined as a “full leave”, and the BUP returns to her or his previous position, subject to Article E.2(e), only “on completion of her/his term”. The parties have therefore defined more precisely the term of the leave than in the particular union leave provision at issue in York County Hospital. Thus, the language agreed to by the parties supports the conclusion that in the instant case the BUP was at all material times on an approved BUP leave from the employer.
- 28. The Association relies on the distinction between the language at issue and the provision in York County Hospital, in that under Article E2(c), the Association liability is limited to 50% of the BUP’s annual salary, and does not include the cost of benefits. Paid short-term sick leave is a benefit, it argues, the Association is not required to pay the cost of benefits under this leave provision, and the Hospital should therefore be required to pay 100% of the short-term sick leave benefit, just as it is undeniably required to maintain the employee’s premium-based benefits. While attractive for its straightforward clarity, I must reject this argument for two reasons.
- 29. First, the analysis in York County Hospital does not turn on the meaning of “benefits” or who is responsible for paying for that benefit, but rather on the basis upon which the employee is absent from work, i.e. whether because of a union leave or because of a sick leave. Because the arbitrator concludes that the primary affiliation is with the union leave and not the sick leave, he concludes that the employee must be paid as she or he would be on union leave, not sick leave. This approach is adopted by arbitrator Steinberg in Mount Sinai, where he found that an employee on an extended union leave did not revert to active status while on vacation, holiday or sick leave.
- 30. Second, read in the context of the broader terms of E2 and the collective agreement as a whole, I find that the payments made to the BUP while off sick are more properly understood as part of her or his “annual salary”. Unlike premium-based long-term disability benefits, short-term sick leave under the collective agreement and the terms of the plan is paid as “salary continuation”. The strict distinction between “salary” and “benefit” that the Association seeks to draw is not therefore so clearly delineated under the terms of this collective agreement as it might be in other contexts. Under Article E.2(a) the hospital is required to maintain the “annual” salary of the BUP, for the term of office, suggesting a global calculation spanning the term of the leave. In conjunction with the finding that on the facts before me the BUP remained at all time on BUP leave, it follows that the Association’s obligation under Article E.2 is to continue paying 50% of the BUP’s annual salary “for the period of her or his term”. These terms point to an obligation on the parties to split the salary costs of the BUP during the term of office and so long as the leave continues. Read together, they do not support parsing out periods of absence from performing the duties of the BUP, whether for vacation or holiday leave (which are not in dispute) or short-term sick leave.
- 31. In appropriate circumstances, parties may rely on past practice in support of an interpretive argument. The evidence of past practice before me, however, is both limited and somewhat ambiguous. The only two specific examples presented of how the provision has been applied are contradictory. To the limited extent that the practice favours either party’s position, it would appear to support the Hospital’s. With one significant exception it appears that the Hospital has routinely billed the Association for 50% of the salary paid to the BUP when she or he took a sick day. Ms. Pestrin’s evidence was not detailed in this regard, but neither was the Association in a position to challenge it. It is not necessary to address the appropriateness of considering this extrinsic evidence in any detail, however, because I find that it does not in any event point toward a different conclusion than I have reached above.
- 32. For all of these reasons, I find that the Hospital did not breach the collective agreement when it required the Association to reimburse 50% of the salary paid to the BUP, including for the days that the BUP was off sick. The grievance is therefore dismissed.
Dated at Toronto, Ontario, this 8th day of April 2019.