Is an absence due to workplace injury an “absence due to sickness or accident”?

When Bruce Rafter was off sick in February 1998, he was not paid for the first two days of his absence. This was because, under his collective agreement, payment of Short Term Disability benefits began only on the third consecutive day of absence. However, those employees who had completed one year of “perfect attendance from the last date of return to work from an absence due to sickness or accident” were entitled to receive STD benefits from the first day of the new absence.

Rafter had been off work in November 1997 due to an injury for which he received workers’ compensation. His union argued that this absence was not covered by the collective agreement language above, and that he should consequently receive STD benefits from the first day of his absence. The company disagreed, stating that only vacations and similar situations were exempt from the calculation of attendance, and noting its practice of using STD funds to top up workers’ compensation benefits to 100 percent of the injured workers’ wages.

Rafter grieved the denial of two days’ benefits. At arbitration, the union pointed to negotiating history and the fact that workers’ compensation was one form of absence that was excluded from the company’s attendance management policy. The company responded that workers’ compensation was considered an absence for the purpose of its monthly and yearly “perfect attendance” awards.

In Re Canadian Bank Note Co. Ltd. and Graphic Communications Union, Local 41-M, a decision issued on April 26, 1999, Arbitrator Richard Brown upheld the company’s position. The arbitrator noted that a literal reading of the contested language revealed no distinction between incapacity resulting from workplace injury and other forms of incapacity. Moreover, he pointed out that the STD plan, which was part of the collective agreement, provided that workers absent due to “sickness or accident” were entitled to 100 percent of their wage rate. The employer had adopted the practice of supplementing the income of workers absent due to workplace injury, based on its belief that this language applied to such absences. A contrary reading, as urged by the union, would jeopardize the right of workers receiving workers’ compensation to have these benefits topped up.

Was the evidence cited by the union sufficient to displace the rule of interpretation that the same words mean the same thing in different places in a contract? The arbitrator held that it was not. Accepting the union’s position would require him to hold either that the term “sickness or accident” meant two different things in a single provision, or that workers had no contractual right to have their workers’ compensation benefits topped up by the company. In the result, he ruled that the words “sickness or accident” included absences while on workers’ compensation for the purpose of the STD waiting period, and that Rafter was not entitled to STD benefits for his first two days of absence.

For further information, please contact Lynn Harnden at (613) 563-7660, Extension 226.

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