The URL can be used to link to this page

Home My WebLink About2012-1998.Best et al.13-03-21 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-1998, 2012-1999, 2012-2287, 2012-2288 UNION#2012-0225-0001, 2012-0225-0002, 2012-0225-0003, 2012-0225-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Best et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Cathy Phan Ministry of Government Services Labour Practice Group Counsel HEARING March 14, 2013. -2 - Decision [1] Russell Best, Paul Spitzig, and Laura Brandon were Correctional Officers working at the Walkerton Jail at the time of its closure. Shirley Anne Lair was a Records Clerk at the time. All the grievors were surplussed and elected to take the severance package. Each have filed a grievance that alleges that the Employer has improperly calculated the amount of severance owing when it “refused to pay legislative severance” and “refused to acknowledge part time service as part of continuous service.” [2] By way of remedy they requested that the Employer be ordered to pay them an amount of severance that is congruent with the collective agreement and the Employment Standards Act, R.S.O. 2000 (hereinafter referred to as “the ESA”). [3] It was agreed by the parties that these grievances are before the Board in accordance with Article 22.16 and therefore this decision is without precedent and prejudice. [4] Notwithstanding that agreement the parties also indicated that it would be useful if this decision made clear the nature of the dispute and the Board’s disposition with some reasons. Accordingly, this decision will be somewhat more fulsome than others issued under Article 22.16 although not all of the submissions will be set out in detail. [5] Each of the grievors received notice of surplus in accordance with Article 20 of the collective agreement. All elected to take a severance package and received monies in accordance with Article 53.4.1, which provides “severance pay for continuous service from and after April 1978, equal to one (1) week of salary for each year of continuous service from and after April 1, 1978.” [6] All of the grievors were also entitled to enhanced severance as set out at Appendix 9 – paragraph 4(b) which states: Receipt of surplus notice on or after January 1, 2006 Employees who are laid off or who have resigned and received their pay in lieu of notice pursuant to Article 20.2 (Notice and Pay in Lieu) will receive, in addition to their Article 53 or 78 termination payments, a further severance package of one (1) week’s salary for every completed year of continuous service. This paragraph will not apply to employees who are eligible to retire and receive an actuarially unreduced pension or, as a result of the application of paragraph 2(a), will become entitled to receive an actuarially unreduced pension. This paragraph will not apply to employees described in paragraph 1 who are transferred to a new employer or, subject to 1(b), who decline a transfer to a new employer. [7] On behalf of the grievors, the Union submitted that the Employer erred in their severance calculations. Specifically, they should have received severance for every year of service since their date of hire and not in accordance with their continuous service date. It was -3 - stated that section 65 of the ESA applies and should bring about an increased amount of severance. Section 65 states: 65(1) Calculating severance pay – Severance pay under this section shall be calculated by multiplying the employee’s regular wages for a regular work week by the sum of, a) the number of years of employment the employees has completed; and b) the number of months of employment not included in clause (a) that the employee has completed, divided by 12. 2) Non-Continuous employment – all time spent by the employee in the employer’s employ, whether or not continuous and whether or not active, shall be included in determining whether he or she is eligible for severance pay under subsection 64(1) and in calculating his or her severance pay under subsection (1). [8] Mr. Brewin, for the grievors, stated that section 5 of the ESA applies in this matter. It says: 5.(1) No Contracting Out - Subject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void. (2) Greater contractual or statutory right – If one or more provisions in any employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply. [9] The Union urged that the collective agreement does not provide a greater benefit. Indeed, two of the grievors received less money in total (including the enhanced severance) than they would have received had the Employer applied section 65 of the ESA. [10] The Union acknowledged that Article 18 sets out a formula for the calculation of “continuous service date”. However, the grievor’s urged that Article 18 should not apply in these circumstances. It was suggested that it is improper to disregard the many weeks worked by fixed term employees that fall short of the definition of continuous service date when calculating severance pay. It was contended that this provision must be inapplicable and deemed to be waived because it offends section 65 of the ESA and for that reason the grievances should be upheld. [11] Ms. Phan, for the Employer, asserted that the collective agreement is clear and unambiguous and provides that severance pay and enhanced severance is paid to eligible employees on the basis of their continuous service date. Continuous service date is determined through a formula that was agreed by the parties and is utilized for a variety of provisions as set out in the collective agreement. These are sophisticated parties who understood the overarching affect of the term “continuous service date”. The Union cannot now attempt to avoid that agreement. -4 - [12] The Employer argued that the collective agreement provides a greater benefit than the ESA. The Act provides one week of severance for each year of employment to a maximum of twenty six weeks. The collective agreement provides one week of severance per year of continuous service to a maximum of twenty six weeks plus an enhanced severance payment of each week of continuous service with no maximum amount. There can be no doubt that this is a package that is superior to the benefit found at Section 65 of the ESA according to the Employer. As a result of this being a great benefit, the grievances must fail. [13] The Union, in reply noted that this “greater benefit” brought about less monies to two of the four grievors. The Employer responded that when a determination of whether the collective agreement provides a greater benefit, the benefit as a whole is considered and not as applied to a particular individual or small group of individuals such as the grievors. [14] The parties referred to Re The Crown in Right of Ontario and OPSEU (Malpage & Walker) GSB#0533/96 (Briggs); and Re General Dynamics Canada and Salaried Employees’ Alliance of Canada (2010), 201 L.A.C. (4th) 273 (Baxter). DECISION [15] After a consideration of the facts and submissions in this matter, I am of the view that the grievances must fail. [16] I agree with the Employer’s contention that the collective agreement between these parties is clear and provides a greater overall benefit than that found at section 65 of the ESA. Therefore, the ESA does not apply. [17] A determination of greater benefit in these circumstances is not an exercise where each and every member of the bargaining unit is individually considered. The determination is made, as suggested by the Employer after taking into account the benefit to the bargaining unit as a whole. [18] The collective agreement provides a greater benefit than the ESA because it has both the severance pay found at article 53.4 and the enhanced severance (with no maximum amount) found in Appendix 9. [19] The severance pay to which the grievors are entitled is based on their continuous service date and not on the years since their dates of hire. Again, I agree with the Employer that the collective agreement is clear in this regard. [20] For those reasons, the grievances are denied. -5 - [21] Mr. Brewin suggested that there may be an additional issue regarding the grievance of Ms. Brandon and asked that I remain seized. There was no objection raised to this request. In the event that there is a further matter, the Union is to notify the Board and the Employer within forty five days of this award. I remain seized for that period. Dated in Toronto this 21st day of March 2013. Felicity D. Briggs, Vice Chair