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HomeMy WebLinkAbout2011-3064.Fernandes.14-09-11 Decision Crown 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#2011-3064 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Fernandes) Association - and - The Crown in Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFORE Marilyn A. Nairn Vice-Chair FOR THE UNION Marisa Pollock and Kelly Doctor Sack Goldblatt Mitchell LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Stewart McMahon and Robert Fredericks Ministry of Government Services Legal Services Branch Counsel HEARING June 20, 2014 Decision [1] This decision deals with the preliminary issue of whether AMAPCEO (the “Association”) may pursue, on behalf of Joseph Fernandes, a grievance brought pursuant to Article 27 of the collective agreement between the Crown in Right of Ontario (the “employer”), represented by the Ministry of Health and Long-Term Care (“MOHLTC”) and the Association. That grievance asserts that the employer failed to directly assign the grievor to certain vacant positions when he was surplussed, and/or failed to provide him with available bumping opportunities. The employer takes the position that these assertions cannot now be made as the grievor exercised the pension bridging option in order to retire under Surplus Factor 80 (“SF80”) of the Public Service Pension Plan (“PSPP”) and has thereby waived all entitlement to other surplussing options. In the alternative, the employer argued that any rights extant after the grievor’s election date have been waived. [2] The parties agreed to extensive facts, including numerous documents. Their agreed statement is reproduced below: A. The Complainant’s Surplussing and Election 1. By letter dated June 1, 2011, the Employer provided AMAPCEO with disclosure regarding the surplussing of 42 positions in the Ministry of Health and Long Term Care, including Mr. Fernandes’ position. The Employer advised that it would meet with employees in the affected units on June 16, 2011, that staff would have until June 30, 2011 to provide proposed workforce measures in order to minimize surplus notices, pursuant to Article 27.5.2 of the Collective Agreement and that impacted incumbents would be provided with a final notice of layoff on August 30, 2011. Joint Book of Documents, Tab 3 2. On or around June 16, 2011, Mr. Fernandes was verbally advised that his position would be surplussed. 3. On or around July 4, 2011, Mr. Fernandes provided the Employer with a revised Employee Portfolio. Joint Book of Documents, Tabs 8 & 9 4. By letter dated August 5, 2011, the Employer advised AMAPCEO that it was extending the pre-notice period, that it would not be issuing surplus notices on August 30, 2011 and that this decision would be communicated to employees on August 10, 2011. Joint Book of Documents, Tab 4 5. On August 23 and September 27, 2011, the Employer processed Mr. Fernandes through its Pre-Surplus Vacancy Match Reports and determined that Mr. Fernandes was not qualified for any available direct assignments. - 2 - 6. On October 28, 2011, the Employer processed Mr. Fernandes through its Bump Match Reports and determined that Mr. Fernandes was not qualified for any available bumps. 7. By letter dated November 1, 2011, the Employer advised AMAPCEO that it would proceed with layoff notices for the affected group of employees on December 2, 2011. Joint Book of Documents, Tab 5 8. By letter dated November 14, 2011, the Employer notified Mr. Fernandes and AMAPCEO that it would be proceeding with layoffs on December 2, 2011. Mr. Fernandes was advised that he could contact his Human Resources contact, Maria Calaminici, if he required additional information. Joint Book of Documents, Tab 6 9. On December 2, 2011, the Employer provided Mr. Fernandes and AMAPCEO with a formal notice of layoff. He was notified in this letter that his position was declared surplus effective December 2, 2011 and his potential layoff date was June 2, 2012. Mr. Fernandes was advised that there was no vacancy available to which he could be matched pursuant to Article 27.6.2 and that no position had been identified that would allow him to exercise a bumping option under Article 27.6.3. Joint Book of Documents, Tab 7 10. Mr. Fernandes was provided with various options set out in Attachment 1 to the letter, was asked to review the options and, before making a decision, to consult with either his Human Resources Advisor or his AMAPCEO representative. Joint Book of Documents, Tab 7 11. He was advised to select an option by December 16, 2011, failing which he would be deemed to have chosen to remain available for direct assignment pursuant to Article 27.6.3(b)(ii) (Option 3). Joint Book of Documents, Tab 7 12. On December 9, 2011, the Employer processed Mr. Fernandes through its Surplus Match Reports (Main & Cleared) and determined that Mr. Fernandes was not qualified for any available positions. 13. On December 16, 2011, at 7:10 a.m., Mr. Fernandes sent an email containing a number of questions to his Human Resources Advisor, Maria Calaminici, with a copy to his AMAPCEO representative. Attachment A 14. Mr. Fernandes had a number of questions about the fact that he was required to select the Surplus Factor 80 option within 10 days of receiving his Notice of Layoff, even - 3 - though he would not know if the Employer would find a position for him within the subsequent 6 month notice period. He wrote: 1. As per the NoL dated Dec 2/11, if I do not respond by Dec 16/11, today, then I will have chosen to remain available for direct assignment, Option 3. If so, does this mean that if no match is identified at the end of 6 months, I do not automatically have the option to retire under the Surplus Factor 80 option at that point? I cannot select at that time to take the Surplus F80 Option? I understand that I will be considered for direct assignments while I continue working throughout my 6 month notice period, but to select the Surplus F80 option, do I have to do it by today Dec 16/11 or can I do so later, i.e. just before my 6 months NoL ends? If I have to notify today, what is the purpose of that, compared to notifying just before the NoL period ends, given that in either case I will still be considered for direct assignments? Why will I forfeit the opportunity to select Surplus 80 Option at the end of my NoL? Why does the employer have to know now? Attachment A 15. On December 16, 2011, at 12:52 p.m., Ms. Calaminici responded to Mr. Fernandes, with a copy to his AMAPCEO representative. Ms. Calaminici wrote: If you are eligible for the Surplus Factor 80 Program, your election of this option is due today – December 16th – please refer to the collective agreement regarding conditions to access this option – Article 27.20.1. Attachment B 16. In his email dated December 16, 2011, Mr. Fernandes went on to ask: If I do not get directly assigned to a permanent vacancy during the NoL period, and I am eligible for Surplus F80, will I still be eligible to be matched to temporary AMAPCEO vacancies in the last 2 months of the NoL period, as the NoL letter indicates. If so, will I still be eligible for Surplus F80 upon completion of the temporary assignment? Will I continue to be considered for direct assignments during that time? If so, and I do get matched, will the start date of the new assignment be once the period of temporary assignment ends, or as soon as the match occurs, even if there is a signed agreement on the date the temp assignment ends? Attachment A 17. Ms. Calaminici replied to these questions by referring Mr. Fernandes to article 27.20 of the Collective Agreement. Attachment B - 4 - 18. In his email dated December 16, 2011, Mr. Fernandes also asked Ms. Calaminici about whether Option 4, Option 5 (d) or Option 5(f) applied to his situation. He also asked about the effect of article 27.22.2 of the Collective Agreement if he selected Option 4 – Pension Bridging. He wrote: 3. Option 4 – Pension Bridging, references Surplus F80 in that I can bridge (up to 2 years LWOP) and this may be my case. However, Option 5(D) also references Surplus F80 But is [sic] this apply only if I do not require bridging? That would mean that my F80 date would have to be within a period that equates to the $ value of NoL plus severance plus enhance severance converted to paid LOA, which does not include any LWOP? If this applies to me, under art. 27.20.1, I have to provide written election of this option to you by today, Dec 16/11. However, if I am eligible for Option 4, which I think applies to me, I do not have to provide a written election? 4. Under Art 27.22.2, if choose Option 4, I will no longer be eligible for direct assignment (or pay-in-lieu, buming [sic] or recall). Is [sic] this apply if I choose Option 4 today December 16/11, or does it apply only after the NoL period ends and no direct assignment has been found and I invoke Surplus F80 option, even if I choose that option today Dec 16/11? 5. Option 5(F) also references Surplus F80, but applies only if I reach my Factor 80 date without having to take a LWOP, i.e. I can convert my NoL period and severance to a paid LOA. How is this different from 5(D)? Attachment A 19. Ms. Calaminici replied as follows: Per my previous notes, you will need to confirm your retirement or pension bridging eligibility. You will need to confirm your dates with OPB. You will need to contact Beverly Jones, Benefits Adviser; she may be able to provide some clarification on this for you. Attachment B 20. Later that day, Mr. Fernandes signed his election form and selected Option #4: Pension Bridging. When selecting Option #4, Mr. Fernandes noted that his retirement information had not yet been confirmed by the Ontario Pension Board (“OPB”), despite a request made on December 2, 2011. He stated that he would be choosing Surplus Factor 80 as his retirement option and made the following further notation on his Option Form: As indicated to Maria Calaminici, I am electing Option 4 based on confirmation from OPB of my eligibility when OPB provides me that information. Record on file shows OPB response indicating that I would - 5 - receive this from OPB within 1 -> 3 business weeks from Dec. 2/11. My decision to retire under Option 4 is based on the confirmation. Joseph Joint Book of Documents, Tab 7 21. By letter dated December 19, 2011, the Ontario Pension Board wrote to Mr. Fernandes in response to his request for a Surplus Factor 80 estimate. The letter stated, “You cannot exercise the Surplus Pension Bridging Option unless you are officially declared surplus and your employer does not find another position for you during the notice period.” Attachment C 22. On or about January 5, 2012, Mr. Fernandes submitted a revised Employee Portfolio. 23. The Employer continued to process Mr. Fernandes through its Surplus Match Reports on February 16, March 14, April 19, May 23, and May 30, 2012. 24. According to a document received from the Employer, the pension bridging schedule was as follows: a. December 2, 2011 to May 31, 2012 - layoff notice period, less one day, paid leave; b. June 1 to July 31, 2012 –paid leave covered by various accumulated credits; c. August 1, 2012 to February 7, 2013 - legislated severance – paid leave; and d. February 8, 2013 - remainder of layoff notice period- paid leave. Attachment D 25. No position was found for Mr. Fernandes and on February 8, 2013, he retired and began receiving an actuarially unreduced pension. He received his first pension payment on March 22, 2013. At the date of his retirement on February 8, 2013, Mr. Fernandes was 53 years old and had 27 years of pensionable service. 26. AMAPCEO filed a dispute on December 19, 2011 claiming, inter alia, that Mr. Fernandes was not properly matched to a direct assignment or a bump. AMAPCEO claims that Mr. Fernandes should have been directly assigned or permitted to bump the following positions which were available at the time that Mr. Fernandes was surplussed or which became available during the 6-month notice period which followed the December 2, 2011 notice of layoff date (the “Notice Period): - 6 - (a) Special Events Coordinator (N-CT-41845/12) (b) Business Services Analyst (Temp) (T-MT-44491/12) (c) Business Services Coordinator (T-ET-39630/11) (d) Project Control Officer (207877) (e) Project Officer (218596) Joint Book of Documents, Tab 2 27. The Employer has taken the position that Mr. Fernandes and AMAPCEO are precluded from asserting a right to a direct assignment or a bump as a result of the fact that Mr. Fernandes elected the Pension Bridging Option to retire on an actuarially unreduced pension option under the Public Service Pension Plan, pursuant to Article 27.22 of the Collective Agreement. The Employer relies on Article 27.22.2 of the Collective Agreement, , which states: 27.22.2 Surplus employees who choose this option shall waive all rights to bumping, direct assignment, pay-in-lieu and recall. 28. AMAPCEO does not agree that Mr. Fernandes waived his right to be directly assigned or permitted to bump either at the time of his surplussing, or during the Notice Period. B. History of Surplus Factor 80 Voluntary Factor 80 29. In 1993, the Rae government introduced a Voluntary Factor 80 Early Retirement Program (“Voluntary Factor 80”), in order to reduce the size of the Ontario Public Service through attrition. Employees had the option of electing to retire with an unreduced pension within three months of reaching their factor 80. If employees did not choose to retire at that time, they could not retire with an unreduced pension until they reached one of the other unreduced pension options, being either 60/20, age 65 or factor 90. The penalty for retiring before reaching an unreduced pension option was approximately 5% per year for every year the employee is short of age 65. 30. The Voluntary Factor 80 program expired March 31, 2000, but was later extended and expired on March 31, 2002. 1996 Interim Agreement 31. Following an application for certification filed by AMAPCEO on January 19, 1995, AMAPCEO and the Crown in Right of Ontario entered into a voluntary recognition agreement. 32. The parties agreed that, prior to entering into negotiations for a complete first collective agreement, they would first negotiate various matters affecting job security. - 7 - 33. Janet Ballantyne, Robert Stambula, and Gary Gannage formed AMAPCEO’s bargaining team. 34. The parties reached an agreement on job security issues on March 6, 1996 (the “1996 Interim Agreement”). Attachment E 35. The 1996 Interim Agreement, inter alia, put in place a system whereby the Employer would be required to search for vacancies that surplussed employees could be directly assigned into as well as positions that surplussed employees could bump into. Attachment E 36. The interim agreement included a “Transition Letter” containing a pension bridging option, which allowed surplus employees who were close to, but not yet eligible for an unreduced pension to bridge to their pension eligibility date by using all or some of the notice period, legislative severance, and unpaid leave, as required (the “1996 Transition Letter”). The 1996 Transition Letter included Attachment #1 – Details on Pension Bridging Option, which contained more precise details of how pension bridging would be implemented. Attachment E, pp. 30-32 37. The Transition Letter stated that the Employer shall make the entitlements listed in the letter available to employees until March 31, 1998, and that the entitlements would apply after March 31, 1998 so long as the employees were declared surplus on or before that date. Attachment E, p. 30 38. At the time that the interim agreement was signed, the Voluntary Factor 80 program was in place. The parties agreed in the 1996 Interim Agreement that they would hold subsequent negotiations related to “continuation of Factor 80 and all other pension entitlements unrelated to job security.” Attachment E, p. 1 1998-2001 Collective Agreement 39. The Employer and AMAPCEO entered into their first collective agreement on May 5, 1998. This Collective Agreement covered the period from April 1, 1998 to March 31, 2001 (the “1998-2001 Collective Agreement”). Robert Stambula was the Chair of AMAPCEO’s bargaining team. Attachment F 40. This agreement included a revised “Transition Letter” (the “1998 Transition Letter”). The 1998 Transition letter contained a re-opener clause which allowed employees who - 8 - reached their Factor 80 prior to March 20, 1996, including employees who were within their Factor 80 window on March 20, 1996, to be eligible to requalify under the Factor 80 Program provided that they elected to do so within 30 days of receiving their surplus notice and that they retired within 30 days of receiving the surplus notice (the “Factor 80 Re-Opener”). When an employee selected this option, “all other rights under this agreement are forfeited, save and except for legislative severance under Article 27.15.” Attachment F, pp. 64-68 41. On April 20, 1998, as part of the negotiations for the 1998-2001 Collective Agreement, the Employer agreed that, during the term of the collective agreement, if it extended the date for early retirement under the Factor 80 provisions of the Pension Plan for any Ontario Public Service bargaining unit or the non-union employee group, then the same benefit enhancement would also be provided to members of the AMAPCEO bargaining unit on the same terms and conditions. 42. In 1999, OPSEU negotiated an extension of the Factor 80 program to March 31, 2002, “for employees who are declared surplus prior to that date.” OPSEU MOU, dated June 27, 1999, Attachment G 43. On April 27, 1999, Management Board of Cabinet approved an amendment to the pension provisions which would allow any AMAPCEO employee who has been declared surplus, and who had obtained or exceeded their 80 Factor, to retire on an unreduced pension. Memorandum to Human Resources Directors, dated April 30, 1990, Attachment H 44. The right of any surplussed employee to retire on an unreduced pension if they reached or exceeded their 80 factor became known as “Surplus Factor 80” or the “Surplus Factor 80 program” (as opposed to “Voluntary Factor 80”). The 2001-2004 Collective Agreement 45. On February 12, 2002, AMAPCEO and the Employer entered into a Collective Agreement for the period between April 1, 2001 and March 31, 2004 (the “2001-2004 Collective Agreement”). Robert Stambula was the Chair of AMAPCEO’s bargaining team. Attachment I 46. The 2001-2004 Collective Agreement included a Transition Letter (the “2001 Transition Letter”) which reads, in part, as follows: - 9 - 1. Surplus Factor 80 An employee who receives a Notice of Lay Off on or before March 31, 2004, may apply to retire on unreduced pension provided all of the following conditions are met: (a) The employee’s age plus pension credit totals 80 years on or before employment ceases; and, (b) The employee’s age plus pension credit totals at least 80 years on or before March 31, 2004; and, (c) The employee ceases employment upon the date of lay off specified in his or her Notice of Lay Off. All or part of the employee’s Termination Payments under Article 38 may be converted to and received as paid leave, in order to extend service beyond the employee’s lay off date. In such case the employee must cease employment at the end of the paid leave period; and, (d) The employee must make his or her written election to retire under this paragraph within five (5) days of receiving his or her Notice of Lay Off and the Employer must receive that election within the same five (5) days; and, The employee must forfeit all other surplus entitlement including but not limited to pay-in lieu of notice, bumping, redeployment, direct assignment, recall and enhanced severance pay. Attachment I, pp. 59-60 47. According to paragraph 1(d) of the 2001 Transition Letter : “The employee must make his or her written election to retire under this paragraph within five (5) days of receiving his or her Notice of Lay Off and the Employer must receive that election within the same five (5) days.” Article 26 6.2(d) of the 2001-2004 Collective Agreement states, “… the employee’s notice will:.. (d) inform the employee whether he or she is eligible for the pension bridging option under the Transition Letter.” Attachment I, p. 46, 59 48. The 2001-2004 Collective Agreement also contained a Letter of Understanding from Deborah-Anne Long to Robert Stambula, dated February 12, 2002 which read: If the employer decides not to extend the Surplus Factor 80 program past the scheduled March 31, 2004 termination date, the employer agrees to the following: to amend the Public Service Pension Plan text to ensure that an AMAPCEO member who receives a Notice Of Lay Off prior to March 31, 2004, and whose age plus pension credit totals at least 80 years on or before employment ceases will be eligible to retire under the program. The employer agrees to forgo the requirement that an employee would have to meet the condition that the employee's age plus pension credit - 10 - totals at least 80 years on or before March 31, 2004. However, all other terms and conditions of the Surplus Factor 80 program will continue to apply. The employer also confirms that the application and intent of the Pension Bridging Option remains consistent with previous intent and application. Attachment I, p. 63 49. AMAPCEO was of the view that if an employee were ineligible to retire on a Surplus Factor 80 on the date that he or she received the notice of layoff (because age plus service did not, on that date, amount to 80), that employee could invoke the pension bridging option, which allows for leaves with accumulation of service credits in order to reach the date where the employee would be eligible to retire on a Factor 80. The Employer disagreed and the issue was the subject of a dispute that was heard by Vice Chair Rick Brown. 50. In a decision dated February 24, 2003, Vice Chair Brown determined that: [T]here is nothing in the collective agreement to indicate surplus employees seeking to bridge to Factor 80 should be treated differently from those seeking to bridge to Factor 90 or 60/20. Accordingly, an employee who receives notice of layoff by March 31, 2004 is entitled to use the pension bridging option to reach Surplus Factor 80 after that date. AMAPCEO and the Crown in Right of Ontario, Award dated February 24, 2003, Attachment J 51. The 2001 Transition Letter contains the following language : Pension bridging Surplus Factor 80 Surplus employees who choose this option shall waive all rights to bumping, direct assignment, pay-in-lieu and recall. The employee must forfeit all other surplus entitlement including but not limited to pay-in lieu of notice, bumping, redeployment, direct assignment, recall and enhanced severance pay. Attachment I, pp. 59-60 The 2004-2006 Collective Agreement 52. On April 5, 2005, the parties entered into a Collective Agreement for the period between April 1, 2004 and March 31, 2006 (the “2004-2006 Collective Agreement”). Robert Stambula chaired AMAPCEO’s bargaining team. There are no changes of note from the 2001 Collective Agreement that are relevant to the present motion. Attachment K - 11 - The 2007-2009 MOU 53. On March 27, 2007, the parties entered into a Memorandum of Understanding, which modified certain terms of the 2004-2006 Collective Agreement. Robert Stambula was the Chair of AMAPCEO’s bargaining team. Attachment L 54. In the 2007-2009 MOU, the parties agreed to a number of changes to the job security provisions. 55. The parties agreed to make the matters formerly included in the “Transition Letter” into articles of the Collective Agreement. Attachment L, pp. 64-66 56. In bargaining, the Employer requested a number of changes to the job security entitlements so that employees who had a position available to them could not opt to retire under Surplus Factor 80 instead of remaining employed. The Employer argued, and AMAPCEO agreed, that the intention behind Surplus Factor 80 was to provide a pension safety net for long-serving employees who were surplussed and were not offered jobs. In short, the Employer wanted to retain employees through redeployment and avoid Surplus Factor 80 costs. 57. The parties agreed to the following change: 2004-2006 Collective Agreement 2007-2009 Memorandum of Understanding TRANSITION LETTER The Government is aware that its restructuring initiatives could have a significant effect on employees, some of whom have served for a lengthy period. Accordingly, the Employer shall, until March 31, 2006, make the following entitlements available to eligible employees who are declared surplus on or before March 31, 2006. 1. Surplus Factor 80 An employee who receives a Notice of Lay Off on or before March 31, 2006, may apply to retire on unreduced pension provided all of the following conditions are met: (a) The employee’s age plus pension credit totals 80 years on or before employment ceases; and, 27.20 Surplus Factor 80 27.20.1 An employee who receives a Notice of Lay Off on or before March 31, 2006, without a vacancy identified for direct assignment under Article 27.6.3 may apply to retire on unreduced pension provided all of the following conditions are met: (a) The employee’s age plus pension credit totals 80 years on or before - 12 - (b) The employee ceases employment upon the date of lay off specified in his or her Notice of Lay Off. All or part of the employee’s Termination Payments under Article 38 may be converted to and received as paid leave, in order to extend service beyond the employee’s lay off date. In such case the employee must cease employment at the end of the paid leave period; and, (c) The employee must make his or her written election to retire under this paragraph within five (5) days of receiving his or her Notice of Lay Off and the Employer must receive that election within the same five (5) days; and, The employee must forfeit all other surplus entitlement including but not limited to pay-in lieu of notice, bumping, redeployment, direct assignment, recall and enhanced severance pay. employment ceases; and, (b) The employee ceases employment upon the date of lay off specified in his or her Notice of Lay Off. All or part of the employee’s Termination Payments under Article 38 may be converted to and received as paid leave, in order to extend service beyond the employee’s lay off date. In such case the employee must cease employment at the end of the paid leave period; and, (c) The employee must make his or her written election to retire under this paragraph within five (5) ten (10) days of receiving his or her Notice of Lay Off and the Employer must receive that election within the same five (5) ten (10) days; and, (d) The employee must forfeit all other surplus entitlement including but not limited to pay-in-lieu of notice, bumping, redeployment, direct assignment, recall and enhanced severance pay. Attachment K, p. 60; Attachment L, p. 64 58. The parties also agreed to change art. 27.6.2 by adding paragraph (e), below: 27.6.2 Where there is a vacancy within the existing salary and geographic parameters, including any modification of those parameters as indicated by the employee, to which the employee has been matched under Article 27.8, the employees notice will: […] (e) inform the employee that the Surplus Factor 80 option under Article 27.20 is not applicable. Attachment L, p. 49 - 13 - 59. In addition, the parties agreed to change art. 27.5.2(f) and 27.5.3(f) as follows: 2004-2006 Collective Agreement 2007-2009 Collective Agreement 27.5.2 Where less than the full complement of positions within an administrative district or unit, institution or other such work unit will be declared surplus: (a) the employees in the work unit will be given as much notice as possible that reductions will occur and will be informed of the probable impact on staff. Not less than two (2) weeks prior to the declarations of surplus the employees will be advised of the number of positions that are to be reduced; notice shall also simultaneously be given to AMAPCEO. (b) all employees in the work unit will be offered the opportunity to volunteer for pay-in-lieu options under Article 27.7.1, alternate work arrangements, and/or unpaid leaves of absence, or other workforce measures in order to avoid or minimize surplus notices. Employees will be advised that they must complete their portion of the employee portfolio within one week if they have not already done so; (c) requests to exercise a pay-in-lieu option under Article 27.7.1 from employees in the job functions to be reduced will be approved on the basis of seniority up to the numbers required; (d) the Employer shall give all reasonable consideration to requests for alternate work arrangements, unpaid leaves of absence or other proposed workforce measures; and (e) any additional employees in the unit who have indicated their willingness to take a pay-in-lieu option may register 27.5.2 Where less than the full complement of positions within an administrative district or unit, institution or other such work unit will be declared surplus: (a) the employees in the work unit will be given as much notice as possible that reductions will occur and will be informed of the probable impact on staff. Not less than two (2) three (3) weeks prior to the declarations of surplus the employees will be advised of the number of positions that are to be reduced; notice shall also simultaneously be given to AMAPCEO. (b) all employees in the work unit will be offered the opportunity to volunteer for pay-in-lieu options under Article 27.7.1, alternate work arrangements, and/or unpaid leaves of absence, or other workforce measures in order to avoid or minimize surplus notices. Employees will be advised that they must complete their portion of the employee portfolio within one week if they have not already done so; (c) requests to exercise a pay-in-lieu option under Article 27.7.1 from employees in the job functions to be reduced will be approved on the basis of seniority up to the numbers required; (d) the Employer shall give all reasonable consideration to requests for alternate work arrangements, unpaid leaves of absence or other proposed workforce measures; and (e) any additional employees in the unit who have indicated their willingness to - 14 - pursuant to Article 27.4. take a pay-in-lieu option may register pursuant to Article 27.4. (f) an employee who requests to voluntarily exit under this article may not retire on an unreduced pension under the Surplus Factor 80 option in Article 27.20 if he or she is directly assigned to a vacancy under Article 27.8. The employee must notify the Employer within one (1) week from being advised of the direct assignment if he or she chooses to rescind their initial request to voluntarily exit as per 27.5.3. 2004-2006 Collective Agreement 2007-2009 Collective Agreement 27.5.3 Where the full complement of positions within an administrative district or unit, institution or other such work unit will be declared surplus: (a) the employees in the work unit will be given as much notice as possible that reductions will occur and will be informed of the surplus decision. Not less than two (2) weeks prior to the declarations of surplus, the identified employee(s) will be advised in writing that their position(s) will be declared surplus; notice shall also simultaneously be given to AMAPCEO. (b) all employees in the work unit will be offered the opportunity to voluntarily exit by electing a pay-in-lieu option under Article 27.7.1, or a retirement or pension bridging option. (c) requests to voluntarily exit from employees who receive notice under this article must be submitted within one (1) week from receiving advance notice under this Article. (d) requests, under this Article, to exercise 27.5.3 Where the full complement of positions within an administrative district or unit, institution or other such work unit will be declared surplus: (a)_ the employees in the work unit will be given as much notice as possible that reductions will occur and will be informed of the surplus decision. Not less than two (2) three (3) weeks prior to the declarations of surplus, the identified employee(s) will be advised in writing that their position(s) will be declared surplus; notice shall also simultaneously be given to AMAPCEO. (b) all employees in the work unit will be offered the opportunity to voluntarily exit by electing a pay-in- lieu option under Article 27.7.1, or a retirement or pension bridging option. (c) requests to voluntarily exit from employees who receive notice under this article must be submitted within one (1) week from receiving advance notice under this Article. - 15 - an exit option, will be approved. (e) For clarity, if an employee does not request a voluntary exit option under this article, it will not affect or preclude his or her entitlement to the voluntary exit (including any retirement/pension bridging option) if the employee subsequently receives surplus notice. (d) requests, under this Article, to exercise an exit option, will be approved. (e) For clarity, if an employee does not request a voluntary exit option under this article, it will not affect or preclude his or her entitlement to the voluntary exit (including any retirement/pension bridging option) if the employee subsequently receives surplus notice. (f) an employee who requests to voluntarily exit under this article may not retire on an unreduced pension under the Surplus Factor 80 option in Article 27.20 if he or she is directly assigned to a vacancy under Article 27.8. The employee must notify the Employer within one (1) week from being advised of the direct assignment if he or she chooses to rescind their initial request to voluntarily exit as per 27.5.3. Attachment M, pp. 45-46; Attachment L, pp. 47-48 60. Another change was that employees were given 10 days, instead of 5, to elect to retire under Surplus Factor 80 (art. 27.6.3(c)). Attachment L, p. 49 The 2009-2012 Collective Agreement 61. On April 27, 2009, the parties entered into a Collective Agreement covering the period from April 1, 2009 to March 31, 2012 (the “2009-2012 Collective Agreement”). Robert Stambula was the Chair of AMAPCEO’s bargaining team. Joint Book of Documents, Tab 1 62. The parties agreed to further changes to article 27.20.1. The modified language is set out below (emphasis/strikethrough added): 2007-2009 MOU 2009-2012 Collective Agreement 27.20 Surplus Factor 80 27.20 Surplus Factor 80 - 16 - 27.20.1 An employee who receives a Notice of Lay Off without a vacancy identified for direct assignment under Article 27.6.3 may apply to retire on unreduced pension provided all of the following conditions are met: (a) The employee’s age plus pension credit totals 80 years on or before employment ceases; and, (b) The employee ceases employment upon the date of lay off specified in his or her Notice of Lay Off. All or part of the employee’s Termination Payments under Article 38 may be converted to and received as paid leave, in order to extend service beyond the employee’s lay off date. In such case the employee must cease employment at the end of the paid leave period; and, (c) The employee must make his or her written election to retire under this paragraph within ten (10) days of receiving his or her Notice of Lay Off and the Employer must receive that election within the same ten (10) days; and, (d) the employee must forfeit all other surplus entitlements including but not limited to pay-in-lieu of notice, bumping, redeployment, direct assignment, recall and enhanced severance pay. 27.20.1 An employee who receives a Notice of Lay Off without a vacancy identified for direct assignment under Article 27.6.3 may apply to retire on unreduced pension provided all of the following conditions are met: (a) The employee’s age plus pension credit totals 80 years on or before employment ceases; and, (b) The employee ceases employment upon the date of lay off specified in his or her Notice of Lay Off. All or part of the employee’s Termination Payments under Article 38 may be converted to and received as paid leave, in order to extend service beyond the employee’s lay off date. In such case the employee must cease employment at the end of the paid leave period; and, (c) The employee must make his or her written election to retire under this paragraph within ten (10) days of receiving his or her Notice of Lay Off and the Employer must receive that election within the same ten (10) days; and, (d) Once the employee has met all other eligibility requirements and is able to access Surplus Factor 80, then the employee must forfeit all other surplus entitlements including but not limited to pay-in-lieu of notice, bumping, redeployment, direct assignment recall and enhanced severance pay. (e) the employee must have been laid off: because he or she had not been assigned to a permanent position within his or her six month - 17 - notice period subject to and in accordance with Article 27.8 (Direct Assignment into Permanent Vacancies) or because he or she had accepted and was assigned into a temporary vacancy in accordance with Article 27.10 (Direct Assignments into Temporary Vacancies), but had not obtained an assignment to a permanent vacancy within his or her notice period; and because, failing Redeployment to a permanent assignment, he or she has exhausted all of his or her displacement rights pursuant to Article 27.9 (Bumping). The Plan sponsor agrees to take steps to amend the Public Service Pension Plan in an expeditious manner to provide for the extension of the Surplus Factor 80 window for those employees as described herein. This arrangement meets the requirements of the Public Service Pension Plan, including compliance with legislation governing the Public Service Pension Plan. The Employer confirms that any costs arising out of the extension of the Surplus Factor 80 program to the employees covered by this collective agreement shall be exclusively borne by the Employer. No costs shall accrue to the members as a result of the extension of the Surplus Factor 80 program. 63. This change was requested by the Employer for the same reasons as in paragraph 56. As explained in paragraph 56, the changes were designed to find alternate jobs for - 18 - employees, thereby reducing the costs associated with Surplus Factor 80 Program. The Employer expressed the view that the search for jobs should not be limited to the time that the surplus notice was issued; rather further searches should be done through the notice period in an effort to get a job for an employee and avoid the costs associated with Surplus Factor 80. At the bargaining table, the Employer justified the proposed change by indicating that there were instances where a job may not be found for an employee at the time that the notice of layoff was issued, but a job could be found in the following 6-month notice period. The Employer indicated that it wanted additional time to search for a position for the surplussed employee before the employee retired on a Surplus Factor 80. The Employer requested that AMAPCEO give the Redeployment Services Office more time to find a match that could avoid the need for the employee to leave active employment. 64. The parties also agreed to modify arts. 27.5.2(f) and 27.5.3 as follows: 2007-2009 MOU 2009-2012 Collective Agreement 27.5.2 Where less than the full complement of positions within an administrative district or unit, institution or other such work unit will be declared surplus: (a) the employees in the work unit will be given as much notice as possible that reductions will occur and will be informed of the probable impact on staff. Not less than three (3) weeks prior to the declarations of surplus the employees will be advised of the number of positions that are to be reduced; notice shall also simultaneously be given to AMAPCEO. (b) all employees in the work unit will be offered the opportunity to volunteer for pay-in-lieu options under Article 27.7.1, alternate work arrangements, and/or unpaid leaves of absence, or other workforce measures in order to avoid or minimize surplus notices. Employees will be advised that they must complete their portion of the employee portfolio within one week if they have not already done so; (c) requests to exercise a pay-in-lieu option under Article 27.7.1 from employees in the job functions to be reduced will be approved on the basis of seniority up to the numbers 27.5.2 Where less than the full complement of positions within an administrative district or unit, institution or other such work unit will be declared surplus: (a) the employees in the work unit will be given as much notice as possible that reductions will occur and will be informed of the probable impact on staff. Not less than three (3) weeks prior to the declarations of surplus the employees will be advised of the number of positions that are to be reduced; notice shall also simultaneously be given to AMAPCEO. (b) all employees in the work unit will be offered the opportunity to volunteer for pay-in-lieu options under Article 27.7.1, alternate work arrangements, and/or unpaid leaves of absence, or other workforce measures in order to avoid or minimize surplus notices. Employees will be advised that they must complete their portion of the employee portfolio within one week if they have not already done so; (c) requests to exercise a pay-in-lieu - 19 - required; (d) the Employer shall give all reasonable consideration to requests for alternate work arrangements, unpaid leaves of absence or other proposed workforce measures; and (e) any additional employees in the unit who have indicated their willingness to take a pay-in-lieu option may register pursuant to Article 27.4. (f) an employee who requests to voluntarily exit under this article may not retire on an unreduced pension under the Surplus Factor 80 option in Article 27.20 if he or she is directly assigned to a vacancy under Article 27.8. The employee must notify the Employer within one (1) week from being advised of the direct assignment if he or she chooses to rescind their initial request to voluntarily exit as per 27.5.3. option under Article 27.7.1 from employees in the job functions to be reduced will be approved on the basis of seniority up to the numbers required; (d) the Employer shall give all reasonable consideration to requests for alternate work arrangements, unpaid leaves of absence or other proposed workforce measures; and (e) any additional employees in the unit who have indicated their willingness to take a pay-in-lieu option may register pursuant to Article 27.4. (f) an employee who requests to voluntarily exit under this article may not retire on an unreduced pension under the Surplus Factor 80 option in Article 27.20 if he or she is directly assigned to a vacancy under Article 27.8. The employee must notify the Employer within one (1) week from being advised of the direct assignment if he or she chooses to rescind their initial request to voluntarily exit as per 27.5.3. (f) where an employee who will be the subject of a surplus notice irrevocably declares that he or she chooses not to accept a direct assignment, a bump, or to remain available for direct assignment or where an employee volunteers to take pay- in-lieu or a retirement pension bridging option (excluding Surplus Factor 80), the Employer will not seek a direct assignment or bump for that employee. For clarity, this will not affect an employee’s other entitlements - 20 - including pay-in-lieu, retirement/pension bridging options (excluding Surplus Factor 80) in his/her surplus notice. Attachment L, pp. 46-47; Joint Book of Documents, Tab 1, pp. 50-51 2007-2009 MOU 2009-2012 Collective Agreement 27.5.3 Where the full complement of positions within an administrative district or unit, institution or other such work unit will be declared surplus: (a) the employees in the work unit will be given as much notice as possible that reductions will occur and will be informed of the surplus decision. Not less than three (3) weeks prior to the declarations of surplus, the identified employee(s) will be advised in writing that their position(s) will be declared surplus; notice shall also simultaneously be given to AMAPCEO. (b) all employees in the work unit will be offered the opportunity to voluntarily exit by electing a pay-in-lieu option under Article 27.7.1, or a retirement or pension bridging option. (c) requests to voluntarily exit from employees who receive notice under this article must be submitted within one (1) week from receiving advance notice under this Article. 27.5.3 Where the full complement of positions within an administrative district or unit, institution or other such work unit will be declared surplus: (a) the employees in the work unit will be given as much notice as possible that reductions will occur and will be informed of the surplus decision. Not less than three (3) weeks prior to the declarations of surplus, the identified employee(s) will be advised in writing that their position(s) will be declared surplus; notice shall also simultaneously be given to AMAPCEO. (b) all employees in the work unit will be offered the opportunity to voluntarily exit by electing a pay- in-lieu option under Article 27.7.1, or a retirement or pension bridging option. Where an employee so declares, the Employer will not seek a direct assignment or bump for that employee. For clarity, this will not affect the employee’s other entitlements including pay- in-lieu, retirement/pension bridging options (excluding Surplus Factor 80) in his/her surplus notice. (c) requests to voluntarily exit from employees who receive notice - 21 - (d) requests, under this Article, to exercise an exit option, will be approved. (e) For clarity, if an employee does not request a voluntary exit option under this article, it will not affect or preclude his or her entitlement to the voluntary exit (including any retirement/pension bridging option) if the employee subsequently receives surplus notice. (f) an employee who requests to voluntarily exit under this article may not retire on an unreduced pension under the Surplus Factor 80 option in Article 27.20 if he or she is directly assigned to a vacancy under Article 27.8. The employee must notify the Employer within one (1) week from being advised of the direct assignment if he or she chooses to rescind their initial request to voluntarily exit as per 27.5.3. under this article must be submitted within one (1) week from receiving advance notice under this Article. (d) requests, under this Article, to exercise an exit option, will be approved. (e) For clarity, if an employee does not request a voluntary exit option under this article, it will not affect or preclude his or her entitlement to the voluntary exit (including any retirement/pension bridging option) if the employee subsequently receives surplus notice. (f) an employee who requests to voluntarily exit under this article may not retire on an unreduced pension under the Surplus Factor 80 option in Article 27.20 if he or she is directly assigned to a vacancy under Article 27.8. The employee must notify the Employer within one (1) week from being advised of the direct assignment if he or she chooses to rescind their initial request to voluntarily exit as per 27.5.3. Attachment L, pp. 47-48; Joint Book of Documents, Tab 1, pp. 50-51 65. The parties did not modify art. 27.20.1(c) which states: 27.20 Surplus Factor 80 27.20.1 An employee who receives a Notice of Layoff without a vacancy identified for direct assignment under Article 27.6.3 may apply to retire on unreduced pension provided all of the following conditions are met: […] (c) The employee must make his or her written election to retire under this paragraph within ten (10) days of receiving his or her Notice of Lay Off and the Employer must receive that election within the same ten (10) days; Joint Book of Documents, Tab 1, p. 51 - 22 - 66. The parties did, however, modify art. 27.20.1 (d) as set out below: 2007-2009 MOU 2009-2012 Collective Agreement 27.20.1 (d) the employee must forfeit all other surplus entitlements including but not limited to pay-in-lieu of notice, bumping, redeployment, direct assignment, recall and enhanced severance pay. 27.20.1. (d) Once the employee has met all other eligibility requirements and is able to access Surplus Factor 80, then the employee must forfeit all other surplus entitlements including but not limited to pay-in-lieu of notice, bumping, redeployment, direct assignment recall and enhanced severance pay. Attachment L, p. 64; Joint Book of Documents, Tab 1, p. 68 67. The parties did not modify art. 27.22.2 which states: 27.22.2 Surplus employees who choose this option shall waive all rights to bumping, direct assignment, pay-in-lieu and recall. Joint Book of Documents, Tab 1, p. 70 68. Regular AMAPCEO employees, including Mr. Fernandes, are members of the Public Service Pension Plan (the “PSPP”), which is administered by the Ontario Pension Board. The PSPP is contained in Schedule 1 of the Public Service Pension Act, R.S.O. 1999, C. P.48, as amended. Public Service Pension Plan, Unofficial Consolidation, Attachment M Public Service Pension Plan, Summary of Amendments, Attachment N 69. The 2009-2012 Collective Agreement states the following in the section entitled Surplus Factor 80: 27.20.1: … The Plan sponsor agrees to take steps to amend the Public Service Pension Plan in an expeditious manner to provide for the extension of the Surplus Factor 80 window for those employees as described herein. This arrangement meets the requirements of the Public Service Pension Plan, including compliance with legislation governing the Public Service Pension Plan. … 70. It also states, under the section entitled Pension Bridging Option: 27.22.3: The Employer agrees to make any necessary changes to the pension plan and/or the Public Service of Ontario Act, 2006, Management Board of Cabinet Compensation Directive, August 20, 2007, in as expeditious manner as is possible. - 23 - 71. The Employer has issued and revised a series of informational bulletins for employees about the Pension Bridging Option and Surplus Factor 80. Attachments O-W * * * The employer’s position [3] It was the position of the Crown that this was a straightforward exercise of contract interpretation. Article 27.22.2 of the collective agreement is the relevant provision in the circumstances, argued the employer, and further, the clause is clear and unambiguous. Having been surplussed, the grievor choose the pension bridging option, and thereby satisfied the condition under that clause that leads to the waiver of all rights to bumping, direct assignment, pay-in-lieu and recall, argued the employer. The grievor cannot now, argued the employer, seek to be assigned or bumped to a position to which he may feel he was otherwise entitled. Although the factual context is complicated, argued the employer, at the end of the day, the legal interpretation was exceedingly simple. [4] On December 2, 2011 the grievor was notified that the lay-off would proceed as planned on June 2, 2011. Article 27.6.3 of the collective agreement applied to the grievor, argued the employer, as no vacancy was identified to which the grievor could be directly assigned. No bumping opportunities were identified, noted the employer, and the grievor was advised of his remaining options listed in that clause. [5] The December 2, 2011 document is key, argued the employer. It provided the grievor with his options and required him to make certain irrevocable decisions regarding his lay-off. In reviewing those options, the employer noted that each referred to a specific clause in the collective agreement and were consistent, argued the employer, with the rights and obligations set out in the collective agreement. The grievor was directed to complete the attachment to the December 2, 2011 letter, failing which, he was advised that he would be deemed to have opted for option three, direct assignment. [6] The grievor chose option four, pension bridging, on December 16, 2011, noted the employer. He did include a caveat, noted the employer, but one relevant only to confirmation that he had correctly calculated his early retirement date. The employer was unable to confirm pension eligibility. The grievor did contact the Pension Board, noted the employer, and received confirmation of his pension eligibility dates. At the time of his election in December 2011, his age and service did not reach factor 80, thus the grievor was required to utilize the pension bridging option in order to be able to retire pursuant to SF80. The grievor, noted the employer, did retire effective February 8, 2013. [7] The grievor, argued the employer, is seeking to be treated as if he had chosen option three, and as if he retained rights to challenge the direct assignment/bumping issue, yet chose the pension option. The grievor cannot, argued the employer, have it both ways. [8] The fourth option, pension bridging, noted the employer, is fundamentally a leave provision found at Article 27.22 of the collective agreement. That provision had not changed - 24 - much since first negotiated, noted the employer. It provided for three leaves, the notice period, the period represented by legislated severance, and up to two years of unpaid leave. The employee would otherwise not be entitled to this unpaid leave of absence, argued the employer, which bridges the employee to their “next earliest possible date of an unreduced pension option”. That is, noted the employer, adding the available leave opportunities together, an employee could become eligible for an unreduced pension based on SF80, 60/20, factor 90, or age 65. The grievor was only eligible to bridge to SF80, noted the employer. [9] Option five, retirement, argued the employer, was a distinct opportunity. Sub-paragraphs (A) – (C) of option five required that the employee be able to retire in one of three ways, 60/20, factor 90, or age 65. Sub-paragraphs (D) – (F) contemplated circumstances whereby an employee is or could become eligible to retire on a SF80 pension by the end of the notice period, or by the end of the notice period and a paid leave of absence calculated based on the conversion of all or part of the legislated severance. The grievor, noted the employer, was not eligible for any of the opportunities under option five, as he had to go beyond the period of legislated severance in order to reach his first pension eligibility date. He required the additional leave opportunities in the pension bridging option in order to be able to retire on an unreduced pension, noted the employer. [10] Employees who choose the pension bridging option are treated differently under the collective agreement from those who opt for the SF80 pension, argued the employer, because employees choosing to retire on SF80 have to remain available for assignments or bumps should one become available. If a suitable match is found prior to issuing the notice of lay-off, Article 27.6.2 applied, argued the employer. The parties had agreed in that case that SF80 was not available, as the parties had agreed that if an assignment was available, the employee must take it. Also, once notice of lay-off is received and one opts to retire under SF80, noted the employer, one does not forfeit matching/bumping rights. Rather, the employee is required to remain available during the notice period. That requirement does not arise under the bridging option, argued the employer. [11] Another difference between bridging and simply retiring on the SF80 plan, argued the employer, is that no enhanced severance is available to an employee retiring under SF80. That entitlement is only available under pension bridging and is used to fund the pension contributions reflected by the required additional service. If any enhanced severance is left over after bridging to an unreduced pension, that amount is paid out in a lump sum, noted the employer. [12] The conditions required to retire under SF80 were set out at Article 27.20, noted the employer. The grievor did not qualify to retire under this provision, noted the employer, as he needed more pensionable service in order to bridge to the required age and years of service. And, noted the employer, pursuant to Article 27.20.1 (e) of the collective agreement, any employee eligible under this provision must accept a match or a bump arising during the six-month notice period, and not retire under SF80. [13] Section 46 of the PSPP reflects the pension bridging option, argued the employer. Page 3 of that provision addresses AMAPCEO members and was applicable to the grievor, argued the employer. The provision confirms, argued the employer, that if the terms of the collective agreement allow an employee to retire on an unreduced pension, the pension plan will allow that - 25 - retirement on an unreduced pension. It brings the matter full circle back to Article 27.22.2, argued the employer. [14] The object of contract interpretation, argued the employer, is to discover the intent of the parties from the words used in the written document. It referred to commentary beginning at chapter 4:2000 of Canadian Labour Arbitration (4th ed.), by Brown & Beatty, regarding the interpretation of collective agreements. The parties are assumed to have intended what they said, all words are to be given meaning, and all clauses are to be rendered operative, argued the employer. There is no ambiguity or absurdity in applying Article 27.22.2, argued the employer. [15] Article 27.22.2 requires that the employee be surplussed. The grievor was surplussed, noted the employer. The employee must also choose pension bridging, as did the grievor, argued the employer. The provision then states that the employee “shall” waive all rights. That use of the mandatory “shall” confirms, argued the employer, that the employee waives all rights to direct assignments or bumps. It is not limited to prospective rights, noted the employer. It includes, argued the employer, all rights. [16] Effect must be given to the statement that rights are waived, argued the employer. It referred to dictionary definitions of the term “waiver” as the relinquishment of rights when done knowingly. The pension bridging language was negotiated well before the SF80 language, noted the employer. Surplus employees who choose pension bridging waive all rights to direct assignments/bumps, argued the employer, because at the moment they decide to retire, administrative steps must be taken to grant the required leaves of absence and to structure their pay in such a way so as to become eligible to retire. Once that decision is made, argued the employer, it is irrevocable. [17] The grievor knowingly waived his rights to direct assignments and/or bumps, argued the employer, and that waiver applies to all decisions, whether before the election or after. There is no doubt, argued the employer, that the grievor was aware that if he chose option four he was waiving his rights to match/bump. That was clear on the option letter and no one, argued the employer, told him otherwise. The grievor chose to bridge to his pension and retire, argued the employer, and to now seek direct assignment and/or bumping rights runs directly counter to the fact that he chose to leave the workforce. To find otherwise, argued the employer, would amend the collective agreement. [18] Such a result also makes sense, argued the employer, as the grievor has retired and is in receipt of a pension. It would be absurd to attempt to undo that by allowing AMAPCEO to proceed to argue that the grievor should have been directly assigned/allowed to bump into a position, whereby, if successful, the grievor would be back at work. [19] The employer noted that, in the context of the grievance, AMAPCEO had identified three vacancies it asserted were appropriate for direct assignment of the grievor. One of those vacancies existed prior to December 16, 2011. The other two arose after December 16, 2011. Similarly, AMAPACEO also identified two positions it asserts were appropriate bumping opportunities for the grievor. Both existed prior to the December 2011 election date. - 26 - [20] In the alternative, the employer argued, if the scope of the waiver was not so broad as to capture a waiver of all rights, it clearly applied to any matter after the election date, which would have the effect of precluding AMAPCEO from challenging two of the five positions identified. [21] In the result, argued the employer, any issue on the merits is precluded. In the alternative, argued the employer, the grievor has waived all rights after making his election and the merits would be accordingly limited. AMAPCEO’s position [22] While agreeing that this was an issue of contract interpretation, AMAPCEO argued that it was not so simple or obvious as the employer suggested. The agreement had to be read as a whole, argued the Association, and in context, not in isolation. Nor could there be a finding of waiver in light of the facts, argued the Association. [23] Pension bridging is an option that bridges an employee to an unreduced pension entitlement, noted the Association. It argued that the employer’s argument was premised on a notion that pension bridging as provided for in the collective agreement was distinct from SF80 and that the two constituted stand-alone options. AMAPCEO took the position that pension bridging and SF80 operated together, producing a benefit to both members and the employer. [24] The facts confirmed, argued the Association, that the employer wanted to limit the costs of the SF80 program and to preserve jobs. Yet the employer’s argument, noted the Association, would result in an employee able to retire on SF80 without bridging being required to remain available for a match/bump during the notice period. Yet an employee that required pension bridging to be eligible for SF80 would not, noted the Association, a result inconsistent with the parties’ intention that if there were a job for someone, they would not be entitled to access SF80. [25] The Association noted that, prior to certification, employees could access the Voluntary Factor 80 program, an incentive program. That program ceased and SF80 took its place. One had to be surplussed in order to access that program. Both SF80 and pension bridging have been in the AMAPCEO collective agreement, noted the Association, since certification. [26] Article 27.5.2(f) was significant and melded the concepts of retirement and pension bridging, argued the Association. The language of the collective agreement did not separate these concepts, argued the Association, as the parties understood the intimate connection between SF80 and pension bridging. The use of a slash mark in the first sentence indicated that retirement equaled pension bridging, argued the Association. Article 27.5.3 also reflected the parties’ intention that SF80 and pension bridging are intimately connected. [27] Article 27.6 prescribed the things the employer must do in issuing a notice of lay-off, noted the Association. Article 27.6.3 (d) required that the employer inform the employee whether they are eligible for pension bridging under Article 27.22. The attachment to the grievor’s December 2, 2011 notice of lay-off did not indicate whether the grievor was eligible, noted the Association. The resulting e-mail exchange was almost comical on this subject of options, argued the Association. Whether there was a waiver in theory, no waiver could be found to exist on these facts, argued the Association. The employer was unable to confirm the grievor’s retirement or pension bridging eligibility, noted the Association, and sent the grievor to the - 27 - Pension Board. In doing so, argued the Association, the employer produced an election form without clear options. The employer also failed to do what it was supposed to do, argued the Association, so no one could be found to have waived any rights. [28] The employer also assumed that the grievor understood what waiver meant in the circumstances, argued the Association. On receipt of the notice of lay-off the grievor immediately took steps to inform himself. He wrote that the decision to retire under option four was based on confirmation that was to come from the employer representative regarding his eligibility, AMAPCEO argued. There was no way for the grievor to have had the knowledge, argued the Association, to make an informed choice and the form assumes that you have that knowledge, argued the Association. The grievor raised questions in his e-mail correspondence, argued the Association, but received no help in response. There can be no waiver of any rights in this case, argued the Association. [29] AMAPCEO argued that the collective agreement used the word “forfeiture” or “deemed to accept” where rights would be given up. A result that deprived someone of a right needed to be signalled clearly, argued the Association. [30] The grievor’s understanding of the collective agreement was the same as AMAPCEO’s, argued the Association, shown by the e-mails. That is, under option four, the employer would continue to search and attempt to match the grievor over the course of the notice period and that he would be entitled to a job if he was matched. This option is quite different from option three, noted the Association, whereby the employer continues to search not only during the notice period but also during the recall period of twenty-four months. [31] The employer did continue to search on behalf of the grievor during his notice period, noted the Association. This evidence of practice supported AMAPCEO’s interpretation, it argued. Nor was the issue raised until just prior to the first day of hearing, argued the Association, such that if there is a waiver in this case, it was the employer’s waiver of this issue. [32] The letter from the Ontario Pension Board confirming that the grievor was eligible for pension bridging also speaks to whether the employer finds him a position during the notice period, noted the Association. The beauty of this option for all involved, argued AMAPCEO, is that the employer can continue to search for positions during the notice period and the grievor cannot access the SF80 by pension bridging unless no job is found. That result, argued the Association, is consistent with the parties’ intention to improve job security for a 52-year old grievor while saving the employer the costs of early and unnecessary access to SF80. [33] Article 27.20.1 is consistent with the bridging option, argued AMAPCEO. The application of Article 27.22.4.2(c) under pension bridging acted to satisfy Article 27.20.1 (b) under SF80, argued the Association. Once eligible for SF80 an employee forfeits all other surplus entitlements, noted the Association. This was not inconsistent with the pension bridging option whereby an employee can use some but not all of their enhanced severance under the bridging option, argued the Association. [34] With respect to Article 27.22.2, the Association argued that the grievor did not choose that option based on the facts surrounding receipt of his notice of lay-off. However, assuming that he did, argued the Association, looking for jobs continues to make sense. By the time an - 28 - employee knows that they qualify for pension bridging and retirement, there would be no more direct assignment rights, as those expire at the end of the six month notice period, argued the Association. Such a result is consistent with the language and with the parties’ intention, argued the Association. If the employer is obligated to search for a match during that period, then the grievor is also entitled to advance a claim with respect to a particular match during that same period, argued the Association, relying on the decisions in OPSEU (Union Grievance) and The Crown in Right of Ontario (Management Board Secretariat), [2001] CanLII 25767 (ON GSB) (Abramsky) and OPSEU (Larman) and the Crown in Right of Ontario (Ministry of Community, Family and Children’s Services), [2003] CanLII 52907 (ON GSB) (Abramsky). [35] AMAPCEO noted section 18 of the Pension Plan, which requires clear eligibility and the need for specific steps to be taken to access the pension. Like the collective agreement, argued the Association, section 46 of the pension plan did not draw a line between SF80 and pension bridging. Bridging, argued the Association, is a vehicle to accomplish SF80. [36] The decision in AMAPCEO (Union Grievance) and the Crown in Right of Ontario (Management Board Secretariat), GSB File #1197/02, decision of Vice-Chair Brown dated February 24, 2003 was consistent with the notion that these provisions are not ‘silos’, argued the Association. This result should not differ based on whether the employee needs to be bridged for a significant period of time to reach SF80 or is already eligible for SF80 and can immediately retire, argued the Association. * [37] In reply, the employer reiterated that the language in the collective agreement between SF80 and the bridging option were distinct, as was the language requiring the employee to waive all rights if opting for pension bridging. The options have different preconditions, argued the employer. The grievor was not eligible for SF80, noted the employer, and required pension bridging in order to become eligible. The SF80 language has been modified in negotiations, noted the employer, whereas the pension bridging language has not. The parties could have but did not conflate the two in the collective agreement. Article 27.5.2(f) excludes SF80 so makes a distinction between SF80 and bridging, argued the employer. [38] With respect to the notice of lay-off, the employer argued that, due to privacy considerations, it did not have access to pension information. Even if the employer could access that information, the fact that it did not advise the grievor was irrelevant, argued the employer, as it saw that he had determined his eligibility on his own, as was later confirmed by the Pension Board. If there was a breach of the collective agreement in this regard, argued the employer, it was of no effect and was de minimus. * * * [39] There are two issues; one is factual, the other, a matter of contract interpretation. The outcome asserted by the employer is that a surplussed employee who opts for pension bridging waives all rights with respect to direct assignments or bumping, or alternatively, waives all rights as of the date of choosing that option. It is AMAPCEO’s position that, on the facts, there was no waiver, and, in any event, a surplussed employee who opts for pension bridging in order to retire pursuant to a SF80 pension, retains rights to direct assignment and/or bumping up to the end of - 29 - the notice period, and has a corresponding right to challenge, by way of a grievance, the employer’s ‘match’ attempts to that point. [40] There is no dispute that, in order to access an unreduced pension, the grievor was required to utilize pension bridging to access SF80. It is also the case that the employer searched for matches for the grievor both in the pre-notice and notice periods. The employer identified no direct assignment or bumping opportunity for which the grievor was qualified. Article 27 - generally [41] Article 27 of the collective agreement lays out a complex and sophisticated set of rights and obligations governing how job security is to be maintained in the face of reductions in workforce requirements. A core feature of Article 27 requires that the employer seek to fill vacancies in the AMAPCEO bargaining unit first with AMAPCEO-represented employees who have been declared surplus. [42] Articles 27.1 to 27.3 speak to a number of issues regarding the necessary provision and exchange of certain information as between the employer, the Association, and employees. Articles 27.5.2 and 27.5.3 set out the broad initial strokes of the lay-off process, depending on whether part or all of a work unit is to be declared surplus. In this case, Article 27.5.2 was the operative provision as 42 positions across the MOHLC were affected. At this stage, initial notice is given and an opportunity exists, under Article 27.4, for employees to choose to voluntarily leave their employment with the Crown. Voluntary exits reduce the adverse impact of lay-offs. [43] Article 27.6 of the collective agreement sets out the requirements for the notice of lay-off. If a surplussed employee has been matched to a vacancy during the ‘pre-notice’ period, their notice of lay-off must indicate, “the Surplus Factor 80 option under Article 27.20 is not applicable”. That notice is also to advise whether the employee is eligible for the pension bridging option under Article 27.22. [44] Article 27.7 of the collective agreement sets out the pay-in-lieu of notice option available to a surplussed employee. Pay in lieu of notice is paid at the employee’s option as either a lump- sum or as salary continuance. The employee also has entitlements to severance pay. However, accepting this option means that the employee accepts the lay-off and leaves employment five days after advising the employer of their acceptance of the option (subject only to an ability to apply to restricted competitions for 24 months after the date of lay-off). [45] Article 27.8 of the collective agreement sets out the rights and obligations for the ‘matching’ and direct assignment of a surplussed employee to an existing vacancy. Direct assignments seek to match an employee to a vacancy in a position at or near the employee’s current level of employment, both from a financial and geographic perspective and subject to broader parameters at the employee’s option. This option requires the employee to remain eligible or available for assignment during the notice period. [46] Article 27.9 of the collective agreement sets out the parameters of the bumping option. Where a surplussed employee is not directly assigned to a vacancy, they may be eligible to bump into an AMAPCEO position held by a junior employee. - 30 - [47] Article 27.10 of the collective agreement deals with temporary assignments that may be available as a means to continue employment beyond the lay-off date. Article 27.11 of the collective agreement deals with issues affecting laid-off employees, including but not limited to, the scope of recall rights for employees who have been laid-off and who have not forfeited rights by refusing to accept a direct assignment, salary red-circling, maintaining one’s current address with the employer, loss of recall rights, and rights to apply for restricted competitions. [48] Articles 27.12 to Article 27.19 of the collective agreement deal with a variety of ancillary issues, including definitions, salary determination, retraining opportunities, severance entitlements, part-time employees, redeployment outside the bargaining unit, rights and obligations on the sale of a business, and an initial dispute resolution mechanism. [49] Article 27.21 of the collective agreement establishes entitlement to enhanced severance pay. Two provisions remain - Article 27.20, which deals with SF80, and Article 27.22, titled “Pension Bridging Option”, the two provisions most relevant here. What rights did the grievor have? [50] This grievance was filed under the terms of the 2009-2012 collective agreement. What rights did the grievor have, and has he waived those rights? The grievor was not eligible to retire on a SF80 pension as of his date of lay-off. Nor was he eligible to retire on a SF80 pension even had he converted any termination pay entitlements to paid leave. His age plus pension credits would not have totaled 80 years. The grievor required the additional opportunities for acquiring pensionable service that are provided by pension bridging. [51] This first issue is whether Article 27.20 of the collective agreement applies to a surplussed employee seeking to retire on an unreduced SF80 pension and utilizing pension bridging under Article 27.22 of the collective agreement in order to do so. If Article 27.20 applies in this circumstance, the grievor retained direct assignment/bumping rights until the end of the notice period. If not, the grievor had direct assignment/bumping rights only in the ‘pre- notice’ period. [52] The Association’s position that a surplussed employee, utilizing pension bridging in order to be eligible to retire on a SF80 pension, has a right to direct assignment/bumps during the notice period is, at first blush, persuasive. It recognizes that referring to pension bridging as a ‘stand alone’ option for a surplussed employee fails to account for the fact that it provides a means to an end. ‘Pension bridging’ does not characterize how a surplussed employee exits employment (options that include “taking a package’ or retiring). Pension bridging is one means whereby a surplussed employee may qualify to retire on an unreduced pension under the PSPP. The end or goal for a surplussed employee is to retire on an unreduced pension at the point of lay-off, whether that pension option be age 65, factor 90, 60/20, or SF80. [53] The result sought by AMPACEO is also consistent with the parties’ intention in negotiating Article 27.20.1(e). AMAPCEO’s point is well taken. It appears to make little sense that an employee requiring pension bridging in order to qualify to retire on a SF80 pension would be entitled to retire when an employee who already qualified for SF80 was required to remain available for direct assignment during the notice period, and only be allowed to retire if they were then laid-off because no match or bump was found. - 31 - [54] However, there are significant differences between Articles 27.20 and 27.22. The pension bridging option in Article 27.22 is available to bridge an employee’s service to their “next earliest date on which [they] could exercise an actuarially unreduced pension option under the [PSPP]”. That is, as noted above, utilizing pension bridging provided by Article 27.22 of the collective agreement could provide eligibility for any one of the four unreduced pension options under the PSPP. There is no necessary connection between pension bridging and SF80, except that SF80 is one of those four unreduced pension options under the PSPP. [55] More to the point, unless the collective agreement so provides, there is no necessary connection between Articles 27.20 and 27.22 of the collective agreement. If an employee can qualify for SF80 through the use of pension bridging under Article 27.22 and no reference to or reliance on Article 27.20 is required by the collective agreement, that employee will qualify for SF80 under the terms of the PSPP. So, while Article 27.22 of the collective agreement would not stand alone, it would not stand with Article 27.20 of the collective agreement. It would stand with the provisions of the PSPP regarding the SF80 pension. [56] Can Article 27.20 be read as imposing additional requirements on an employee seeking to retire under SF80 through pension bridging? More particularly, does Article 27.20.1(e) apply to all employees seeking to access SF80, including those utilizing pension bridging? Although attractive because it would reflect consistency in treatment with respect to SF80, I am not persuaded that the language of the collective agreement leads to that result. [57] Sub-paragraph (e) is but one of a number of required conditions under Article 27.20.1. The introductory language in Article 27.20.1 is clear. It provides that an employee not directly assigned in the pre-notice period “may apply to retire” on SF80, “provided all of the following conditions are met”. Five conditions are then set out in sub-paragraphs (a) to (e). As a matter of interpretation, if Article 27.20.1(e) applies to all employees seeking to retire on SF80, then all of those conditions must apply. Differently put, Article 27.20.1 is clear that all of the conditions therein must be met before an employee may apply to retire on SF80 under that provision. [58] However, an employee requiring pension bridging cannot meet the condition in Article 27.20.1(b) that they cease employment no later than the end of a paid leave period calculated on the basis of converting termination pay to paid leave. The fact that they require pension bridging means that they require additional leave in order to acquire sufficient pension credits to qualify. Only then may they cease employment. Stated differently, a surplussed employee utilizing pension bridging cannot cease employment, a required condition, in accordance with Article 27.20.1(b). [59] Similarly, Article 27.20.1(b) cannot properly be read as incorporating the same leave opportunities as available under pension bridging. Contrary to the Association’s submissions, Article 27.20.1 (b) does not speak of ceasing employment at the end of a generically described leave period. Sub-paragraph (b) expressly references paid leave arising from the conversion of termination pay under Article 38 of the collective agreement. It is the only leave described or available under Article 27.20.1. Pension bridging refers expressly to paid leave arising from the conversion of legislated severance pay and a maximum two year unpaid leave. [60] Under Article 27.20.1(d), once the surplussed employee has met the eligibility requirements to access SF80, they must “forfeit all other surplus entitlements - 32 - including…enhanced severance pay”. Under Article 27.22 there is no requirement that enhanced severance pay be forfeited. Article 27.22.2 does not require that any right to enhanced severance pay be waived. To the contrary, enhanced severance pay is one of the entitlements available under Article 27.22.4 to fund pension contributions during the unpaid leave, thereby enabling pension bridging to occur. [61] The leave opportunities, the resulting time frame for ceasing employment, and the entitlements used to extend pensionable service are different as between Articles 27.20.1 and 27.22. Those differences in language must be given meaning. There is no exemption or other language in Article 27.20.1 so as to modify or render these conditions inapplicable to those utilizing pension bridging to retire on SF80. Two of the conditions required by Article 27.20.1 are inconsistent with and cannot be reconciled with the utilization of pension bridging. [62] Given that an employee seeking to access SF80 through pension bridging cannot meet all of the conditions in Article 27.20.1, the logical conclusion is that the parties must have intended these as separate and independent provisions, providing different routes to access SF80. Article 27.20.1 must be read as requiring that all of the conditions therein be met before an employee may apply to retire on SF80 under that provision, and that Article 27.22 provides a different and separate means to access SF80 under the PSPP. In the result, Article 27.20.1(e) would not be applicable to an employee utilizing pension bridging to access SF80. [63] Does reading the collective agreement more broadly or the extrinsic evidence compel a different conclusion? Paragraph 56 of the agreed facts stipulates that it was understood and intended by the parties that SF80 was to provide a pension safety net for long-serving employees who were surplussed and not offered jobs. It was further understood that the employer wanted to retain employees through redeployment and avoid SF80 costs. The question is, how far did the parties’ go in implementing that intention? [64] There is no doubt that the introduction of Article 27.20.1(e) in the 2009-2012 collective agreement changed the rights of surplussed employees opting to retire under SF80 pursuant to Article 27.20. That article captures surplussed employees who are eligible for SF80 by their lay- off date or by no later than the end of the period represented by converting their termination payments to paid leave. The parties clearly intended that this group of surplussed employees would continue to be matched during the notice period and only be laid-off if no direct assignment or bump was found by the end of the notice period. [65] Changes have been made to Articles 27.5.2(f) and 27.5.3(b). The relevant portion of Article 27.5.2(f) can be read as, “where an employee volunteers to take a pension bridging option (excluding Surplus Factor 80), the Employer will not seek a direct assignment or bump for that employee”. The inverse of that phrase, “where an employee volunteers to take a pension bridging option to SF80, the Employer will seek a direct assignment or bump for that employee”, is arguably a reasonable interpretation (subject to Article 27.22.2). Similar language is found in Article 27.5.3(b). However, the reference therein to “retirement/bridging options” provides less indication of the asserted connection between SF80 and pension bridging, as, first, the reference to options is in the plural, and second, the phrase separately refers to “a retirement or pension bridging option”, suggesting that these options are independent of each other. In addition, the first sentence of Article 27.5.3(f) (which did not change in the 2009-2012 round) is clear - an employee seeking a voluntary exit “may not retire on an unreduced pension under the Surplus - 33 - Factor 80 option in Article 27.20 if he or she is directly assigned…”. Whether that qualifies other references to SF80 in Articles 27.5.3(b) and 27.5.2(f) as being limited in application to Article 27.20 is unclear. While the parties have limited the SF80 option under Article 27.20 from those seeking a voluntary exit, the language is not clear as to any further limitation. [66] Adding ambiguity is the latter phrase in both Articles 27.5.2(f) and 27.5.3(b), stating that the limitation “will not affect an employee’s other entitlements…in his/her surplus notice”. The requirements for a surplus notice when there is a match are set out in Article 27.6.2 of the collective agreement. That provision refers to Articles 27.20 and 27.22 separately. During the 2007-2009 round, the parties amended Article 27.20.1 such that SF80 would not be available (at least under that article) if a vacancy was identified during the pre-notice period. Article 27.6.2(e) was also added. Where a vacancy is identified during the pre-notice period, the lay-off notice is to inform the employee that “the Surplus Factor 80 option under Article 27.20 is not applicable”. At the same time, Article 27.6.2(d) requires that the notice separately advise whether the employee is eligible for pension bridging under Article 27.22. [67] These changes to the collective agreement and the statements in paragraphs 56 and 63 of the agreed facts regarding the parties’ intention in bargaining do not provide a clear answer as to the scope of the parties’ intended change, and do not overcome the difficulties in interpreting Article 27.20 as applying conditions on accessing SF80 under Article 27.22. Reading the collective agreement as a whole clearly supports a conclusion that the parties intended to limit a surplussed employee’s ability to opt for SF80 under Article 27.20 (with corresponding continuing rights to be matched) and to limit as well, those seeking voluntary exits under Article 27.20. However, had the parties intended that Article 27.20 also apply to surplussed employees who access SF80 by pension bridging, one would have expected to see different or changed conditions in Article 27.20.1. [68] The decision of Vice-Chair Brown in 2003 supports a conclusion that these are independent provisions. While the decision recognizes a connection between SF80 and pension bridging, it does so by way of a reference to SF80 under the pension plan, not under the transition letter that has since become Article 27.20 of the collective agreement. The decision states (at pages 8 and 9): …Surplus employees seeking to bridge to Factor 80 should be treated in the same way as those seeking to bridge to Factor 90 or 60/20… … Employer counsel argues that the letter of understanding was intended to modify Surplus Factor 80 but not pension bridging. This argument overlooks the logical connection between these two entitlements, bridging with unpaid leave is one way to reach Surplus Factor 80…the most reasonable assumption is that any route by which surplus employees may reach Factor 80 before March 31, 2004, including bridging with unpaid leave, is open to those wishing to reach it after that date. (emphasis added) [69] Finally, if a surplussed employee seeking to retire on SF80 had direct assignment/ bumping rights during the notice period as a result of the application of Article 27.20.1(e), Article 27.22.2 would, in any event, require that those rights be waived as a result of choosing to bridge to SF80. - 34 - [70] Article 27.20 cannot reasonably be read as applying in an overarching way to SF80 because it would mean that no one could access SF80 through pension bridging as they cannot meet certain of the conditions required by Article 27.20.1. Yet it is clear that a surplussed employee may utilize pension bridging to satisfy the PSPP requirements to be eligible for a SF80 pension. The more reasonable interpretation is consistent with the Brown decision that these are different and distinct routes to access SF80. To accept the Association’s position would require amending the collective agreement. [71] Having regard to all of the above, I find that Article 27.22 and Article 27.20 are independent provisions and that the conditions in Article 27.20.1, including Article 27.20.1(e), are not applicable to an employee utilizing pension bridging in order to access SF80. I further find that the grievor, having utilized pension bridging to qualify for SF80, had no rights to direct assignment/bumping during the notice period, as Article 27.20.1 and more particularly, sub- paragraph (e) does not apply in his circumstances. Any rights to direct assignment and/or bumping existed only during the pre-notice period. Can it be said that the grievor waived his rights under the collective agreement? [72] It was not suggested that, as the contracting party, the Association waives these rights on behalf of the employee and that therefore the issue is solely one of contract interpretation. Nor was it argued that an employee is deemed to have certain knowledge or that waiver occurs solely by operation of the collective agreement, regardless of an employee’s actual knowledge. Although the Crown argued that meaning had to be given to the words “shall waive all rights” in Article 27.22.2, it argued that the grievor had knowingly waived his rights to direct assignments and/or bumps, relying on Black’s Law Dictionary which speaks to the “voluntary” surrender of a claim, and, “to waive a right one must do it knowingly – with knowledge of the relevant facts”. [73] Article 27.22.2 is clear to the extent of stipulating that any waiver operates pursuant to a decision made by the employee. Finally, it was not disputed that, ‘where there is a right, there is a remedy’. [74] The attachment to the lay-off notice provided to the grievor set out his surplussing options and required the employee to indicate his chosen option. The outline of the pension bridging option in the attachment does not replicate the language of Article 27.22.2 of the collective agreement. While referring to that provision, it states that an employee choosing option four “will no longer be eligible for pay-in-lieu, direct assignment, bumping and recall”. The words “will no longer be eligible” do not obviously mean the same thing as “shall waive all rights”, the words used in the collective agreement. [75] Direct assignment and bumping rights under this collective agreement exist on a temporal continuum. In that context, the words “will no longer be eligible” can incorporate a pre-existing eligibility that is unaffected by becoming “no longer” eligible. These words imply a prospective limit. Both pay-in-lieu and recall existed as prospective rights in the circumstances here and it is clear that the grievor’s consideration of direct assignment/bumping rights was also prospective. [76] The grievor had clearly read the attachment. On December 16, 2011 he sent a lengthy e- mail to an employer representative asking a series of questions concerning his options and how - 35 - they would work. He made it known that the Pension Board had not yet responded to his pension inquiries. He did understand that if retirement were one of his options, it would be a SF80 pension. He also understood that he might have to bridge to that pension. [77] In the e-mail exchange, the grievor indicated his understanding that those retiring under SF80 continued to be matched during the notice period. He also raised his confusion as to whether option four (pension bridging) or five (retirement) applied to him. The fifth question he posed in his e-mail makes clear that he sought an answer as to the scope of his rights. He asked: …One other confusion lies with whether Surplus F80 for me is Option 4 or 5(D) as stated below… … 5. Under Art. 27.22.2, if choose Option 4, I will no longer be eligible for direct assignment (or pay-in-lieu, [bumping] or recall). [Does] this apply if I choose Option 4 today Dec. 16/11, or does it apply only after the NoL period ends and no direct assignment has been found and I invoke Surplus F80 option, even if I choose that option today Dec. 16/11? [78] No answer is provided to that question by the employer. The grievor is referred to the Ontario Pension Board and to a Benefits Advisor who “may be able to provide some clarification…”. There is no evidence that the grievor made further inquiries of the employer prior to signing the attachment wherein he indicated that he was selecting option four, subject only to confirmation from the Pension Board as to his eligibility for SF80. [79] It is clear from the e-mail exchange that the grievor understood that, at most, he would not be eligible for direct assignment and bumping during the notice period. He was not disabused of that understanding. To the contrary, that understanding was based on and/or confirmed by the language used by the employer in the attachment. Although the words used in Article 27.22.2 of the collective agreement arguably contemplate a full waiver of all rights, there was no suggestion that the grievor was not entitled to rely on the words used in the attachment or that reliance on those words was unreasonable. It cannot be said that the grievor knowingly waived rights to direct assignment and/or bumping held prior to December 16, 2011, during the pre-notice period. [80] Article 27.6.3(d) stipulates that the employer’s notice of lay-off will inform the employee whether he or she is eligible for the pension bridging option under Article 27.22. The employer cited privacy concerns as reason for being unable to do so, yet provided no explanation as to why this language continued in the current collective agreement or made any suggestion that circumstances had changed so as to subsequently limit the employer’s ability to comply. In order to make an informed decision, having this information is critical. While making no finding, I note only that the grievor also did not have this information at the time of making his decision, notwithstanding an earlier request to the Pension Board, and that he appeared, at that point, more focused on trying to determine his pension eligibility than on other issues. - 36 - [81] Having regard to all of the above, and further to paragraph 71 above, Article 27.20.1(e) does not apply in the grievor’s circumstances. He had no rights to direct assignment and/or bumping during the notice period. I further find that, in the particular circumstances of this case, the grievor did not waive any rights to direct assignment and/or bumping during the pre-notice period. The preliminary objection is therefore upheld in part. This matter is scheduled to continue on October 1, 2014. Dated at Toronto, Ontario this 11th day of September 2014. Marilyn A. Nairn, Vice-Chair