Overview
APEX recently took a case in the Employment Court on behalf of CMDHB Part-time phlebotomists working either 4 or 5 hours, 5 days a week. The case looked at how sick leave entitlement is calculated for these part-time employees and turns on whether only hours should be prorated or days as well as hours.
- APEX contended that under the laboratory MECA part-time employees should be allowed a proportion of sick leave in line with their FTE, i.e. someone working 0.5 FTE is entitled to half the sick leave of someone on 1 FTE (20 hours).
- The DHB, however, claimed the best way to reach proportionality was by pro-rating hours as well as days. For example, someone working 0.5 FTE (5 days at 4 hours) would only receive 2.5 days at 4 hours which comes to 10 hours or the equivalent of 0.25 FTE.
Background
From 2002-2011, CMDHB applied the sick leave provisions by allowing those who worked four hours a day, 5 days a week, 20 hours of sick leave. As these part-time workers only worked 4 hours per day, this was equivalent to 5 days’ sick leave at their relevant daily pay, or half the entitlement of a full-time worker. This was in line with union’s interpretation of the sick leave clauses.
In 2011, and without sufficient consultation, the DHB changed the way they calculated the above to make it more manageable for payroll. Applying the APEX method, they argued, led to anomalies whereby a worker on 0.5 FTE over 5 days would become entitled to 40 hours of sick leave as payroll assumed a day worked to be 8 hours. But when the sick day was deducted, only 4 hours would be taken resulting in 10 days of sick leave which is the same as a full-time employee. They began to calculate sick leave entitlement in days rather than hours so someone working 4 hours per day 5 days a week was tallied as working 2.5 days at 4 hours per day.
This had the effect of reducing the sick leave entitlement of one of these workers to being 0.25FTE or 10 hours per year when it should have been 20 hours per year.
Decision
In deciding the correct method, the Court looked to the intention of the parties when agreeing the terms as well as the plain meaning of them.
The Court found the DHB’s method of calculation was not what the parties intended when the clause came into effect. This was changed only to make things easier for payroll, not to correct historic misapplication as the DHB contended, with the DHB agreeing with APEX for 9 years prior to introducing this method.
The Court also looked to the Holidays Act which sets out that the minimum sick leave entitlement for any employee is 5 days per 12 months. It does not specify the length of a day, and the Court found that express reference to this provision in the MECA meant the parties were in agreement that sick leave would apply in days at least equal to the number in the Act.
They therefore found that the correct interpretation in regard to part-time phlebotomists sick leave entitlement requires the hours worked by a full-time employee to be pro-rated to the hours worked by a part-time employee but not the entitlement to days of sick leave.
They set out that the APEX method is the one that ensures proportionality of FTE to sick leave entitlement and reflects the doctrine of employment relations’ common sense.
They also agreed with APEX that due to the varying modes of part-time work, the DHB may need to implement different ways of calculating sick leave entitlement for different employees rather than applying a method that disadvantages some.
In agreeing with APEX, the Court ordered CMDHB to amend their method of calculating part-time sick leave going forward and provide back pay to 11 April 2011 for part-time phlebotomists who have had their sick leave calculated in the incorrect way.
A copy of the decision can be found here for those that wish to read it. If you have any queries about your own sick leave entitlement as a result of this decision, please check with your delegate. If still confused, then let your advocate know as they can work through the implications for you under your collective agreement.