Your employer, Dawson Road Maintenance Ltd., violated the Employment Standards Act (the "ESA") by failing to provide regular employees with the five paid illness or injury days set out in Section 49.1 of the ESA (the "ESA Sick Days").

Our union filed a grievance challenging this and as a result, the employer conceded that it was required to abide by Section 49.1 and agreed to an order which was made by Arbitrator Saunders on November 15^th, 2024 (the "Order"). Under the terms of the Order the administration of the ESA Sick Days to regular employees is to be carried out in the following way:

1. Regular employees are entitled to the five ESA Sick Days referred to at Section 49.1 of the ESA.
2. Under the legislation, ESA Sick days are paid at an "average day's pay", which is based on an employee's average per day earnings in the previous 30 days.
3. As per the legislation, a single ESA Sick Day will be considered used whether an employee uses it to cover an entire day or a partial day off work.
4. If an employee is ill or injured, and under the Collective Agreement they would not otherwise be entitled to pay, then the employee has the option to:
   a. Use an ESA Sick Day;
   b. Use a top up entitlement set out in the Collective Agreement; or
   c. To take an unpaid day off work.
5. If an employee is entitled to paid sick leave under the Collective Agreement for the day in question, the employee may elect one of three options:
   a. Use one of their ESA sick days to top up to an "average day's pay";
   b. Top up their sick leave in the way set out in Article 19.2 of the Collective Agreement; or
   c. To not top up the sick leave.
6. After an employee has used all of their ESA Sick Days, they are still entitled to the illness and injury leave entitlements set out in the Collective Agreement. 
7. Should an employee be absent from work due to illness or injury following the use of all of their ESA Sick Days, they will be treated the same as they would have had they been off work for that number of days under the terms of the Collective Agreement (e.g. day 6 of absence due to illness or injury will continue to be treated as day 6 of absence under the Collective Agreement).

Under the terms of the Order, employees are entitled to a make whole remedy, retroactive to April 1^st, 2022 for the first five days that they were off work for illness or injury in a calendar year. Specifically, the employer is obligated to make employees whole in the following way:

1. Employees who used compensatory time off (CTO), earned time off (ETO), vacation, or other credits to top up or cover their illness or injury leave will have those accruals reinstated.
2. Employees who did not use the above credits to cover their illness or injury leave will be paid the difference between what they were paid (if anything) for such leave, and an "average day's pay" under Section 49.1 of the ESA.

Please reach out to your steward for clarification on any of the above.

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UWU/MoveUP