HomeMy WebLinkAboutBedard 04-05-21
G'd-- ~L,L- ~S-S
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Northea.st Mental Health Centre
- and -
OPSEU
(Union Policy Grievance and Grievance of Roseline Bedard)
Before:
William Kapta¡1., Chair
Roy Filion, Employer Nominee
Pamela Munt-Madill, Union Nominee
Appearances
For the Employer:
Elizabeth Kosmidis
Hicks Morley Hamilton Stewart Storie LLP
Barristers & Solicitors
For the Union:
Will Presley
Grievance Officer, OPSEU
This matter proceeded by way of written submissions which were completed on
February 20, 2004. The Board met in Executive Session on April 20, 2004.
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Introduction
On July 18, 2002, Roseline Bedard, a secretary-receptionist at the Northeast Mental
Health Centre in Sudbury filed a grievance alleging a violation of the collective
agreement asserting, in particular, the failure on the part of management to properly
pay her severance entitlements under the Employment Standards Act (hereafter lithe
ESA"). A union policy grievance was also filed.
The matter was scheduled to proceed to a hearing in Sudbury on January 15,2004.
However, just prior to the scheduled hearing date, the parties agreed to proceed by
way of written submissions, a process which was completed at the end of February
2004. The Board met in Executive Session on April 20, 2004.
The issue in dispute, most simply put, is whether the employer is entitled to use a
payment made under Article 1l.12(c) of the collective agreement to set off against its
severance pay obligations under section 65(8)(2) of the ESA.
Article 1l.12(c) of the Collective Agreement provides:
Where an employee has received individual notice of long term layoff under Article 11.03 such
employee may resign and receive a separation allowance as follows:
i) Where an employee resigns effective within thirty (3) days after receiving individual notice of long
term layoff, she or he shall be entitled to a separation allowance of two (2) weeks' salary for each year
of continuous service to a maximum of sixteen (16) weeks pay, and, on production of receipts from an
approved educational program, within twelve (12) months of resignation will be reimbursed for tuition
fees up to a maximum of three thousand ($3,000.00) dollars.
ii) Where an employee resigns effective later than thirty (30) days after receiving individual notice of
long-term layoff, he or she shall be entitled to a separation allowance of four (4) weeks salary, and, on
production of receipts from an approved educational program, within twelve (12) months of resignation
will be reimbursed for tuition fees up to a maximum of one thousand two hundred and fifty ($1,250.00)
dollars.
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Section 65(8) of the ESA states:
Only the following set-offs and deductions may be made in calculating severance pay under this section:
2. An amount paid to an employee for the loss of employment under a provision of the employment
contract if it is based upon length of employment, length of service or seniority.
The Background Facts
None of the background facts are in dispute. By letter dated April 25, 2002, the grievor
was notified that she was to be permanently laid off effective September 31, 2002. The
grievor was advised of her options under the collective agreement and she
subsequently informed the employer that she accepted the layoff and would be
exercising her right to resign within thirty days as provided for in Article 11.12(c)(i)¡ set
out above. The grievor was then provided with a separation allowance of sixteen
weeks. An individual and a policy grievance were, however, filed asserting additional
entitlement to severance pay under the ESA. As noted at the outset, the only issue to be
determined is whether the collective agreement entitlement can be used as a set off
against the ESA entitlement.
Union Submissions
In the union's view, the grievor is entitled to both severance pay and a separation
allowance, with no offset. In the union's view, the separation allowance provided for in
the collective agreement is not in respect of "loss of employment," as required by the
ESA as a precondition for any offset. The ESA, the union argued, must, given that it is a
benefits-conferring statute, be interpreted in a broad and generous manner.
Article 1l.12(c) was not, the union argued, an amount paid for loss of employment
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because there was no entitlement to this benefit "merely due to loss of employment" as
employment could be lost without the employee taking advantage of the provision.
The connection between the two, was therefore not established to the degree necessary
to disentitle the employee to both the collective agreement benefit and the statutory
entitlement. Any other result, and a number of submissions and graphs were advanced
to support this point, would be absurd, and absurd results were inconsistent with the
authorities and accepted principles of statutory interpretation. Moreover, there was no
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reason to believe, and every reason to conclude otherwise, that the parties intended
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that the separation allowance be integrated with the severance p~y provisions.
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Accordingly, and for all of these reasons and others, considered together with a review
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of the relevant authorities, the union asked that the two grievan~es be allowed and that
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the Board retain jurisdiction to deal with any issue of remedy shquld the parties be
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unable to agree.
Employer Submissions
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In the employer's submission, the collective agreement was clea~. Employees were
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entitled to written notice of permanent or long-term layoff. Onc~ notice was given, a
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number of options were triggered. One of those options was unqer Article 11.2(c) and
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that option, the employer argued, had to be viewed in tandem ~ith rights and
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entitlements under the ESA.
There was no issue in this case about the grievor's entitlement tor severance pay. The
only issue was whether the employer was entitled to a set off. 0* that point, the
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employer argued that Article 11.12(c) was triggered once an employee received notice
of long-term layoff under the collective agreement and resigned. Those events, in
management's view, amounted to a loss of employment, the statutory precondition for
set off. The amount in question was based on service and, as the legislative scheme
generally provided, was paid off in a lump sum. No credit was sought by way of set off
for tuition fee reimbursement.
In management's view, its interpretation was consistent with the purpose of the ESA
which was to provide employees with certain minimum entitlements, including
minimum payments arising out of the severance of employment. The double recovery
being sought by the grievor and the union was, however, precluded by the legislation.
In providing severance payments for employees who would not qualify under the ESA,
the employer exceeded the minimum standards. The collective agreement also
provided a range of other options. Tuition reimbursement was available for all
departing employees. But none of these facts, when applied to this case, precluded the
employer from taking advantage of the set off entitlements in the statute. The only
thing that mattered was the nature of the payment, and it was clear that the payment
that was made was made in connection with the loss of employment. In that regard, it
was noteworthy that the ESA required employees to give up their recall rights in order
to receive termination and/ or severance pay. Accordingly, and for all of these reasons
and others, the employer asked that the grievance be dismissed.
Decision
Having carefully considered the submissions of the parties, we are of the view that the
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grievor is entitled to severance pay calculated in accordance with the ESA less the
separation allowance already paid.
In our view, Article 1l.12(c), properly construed, makes a payment clearly in reference
to loss of employment, which occurred in this case, and it is clearly based on length of
service, just as the statute requires as a pre-condition for a set off. On the agreed facts,
the grievor elected to receive such a payment after considering various options and
deciding to resign. In doing so, she lost her employment and was entitled to the
benefits of the collective agreement provision. The employer was entitled to a set off. .
It is noteworthy that no evidence was led about the intentions of the parties in
negotiating the provision in issue. However, these provisions are normative in
collective agreements, and it should be pointed out that in some respects, such as the
entitlements at the lower end and in educational allowance, the parties have exceeded
the minimum benefits provided for by statute. There is no reason to conclude that this
payment is not tied to the statutory entitlement and, given the language and the terms,
every reason to believe that it is. The point might also be made that the provision is not
without benefit to employees as it results in an immediate entitlement to severance
entitlements, not entitlements received at some later date following expiry of any
opportunity for recall.
Simply put, the ESA provides for a set off for severance payments and the employer is
entitled to that set off where certain conditions are met, and we find that they have
been met given the facts aI)d the collective agreement provision in issue. In this case,
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the ESA entitlement is 17.56 weeks, 16 weeks were paid and so the employer only owes
the grievor 1.56 weeks' worth of pay which we direct be forwarded to the grievor
forthwith.
DATED at Toronto this 21st day of May 2004.
/#¡/~
William Kaplan, Chair
"Roy Filion"
Roy Filion, Employer Nominee
I dissent. Dissent attached.
Pamela Munt-Madill, Union Nominee
DISSENT
I disagree with the Majority's decision in this matter. The question before this
Board is whether the payment made by the employer to the Grievor pursuant to Article
11.12(c) of the Collective Agreement may be used as a set-off against the employer's
obligations under the Employment Standards Act. The Majority has found that the
payment pursuant to Article 11.12( c) is an amount paid to an employee for the "loss of
employment" required by Section 65(8) of the Act. I disagree with this conclusion.
The Majority makes only brief reference to the Union's submissions. They note it
is the Union's contention that the payment pursuant to Article 11.12(c) of the Collective
Agreement is not "merely due to the loss of employment': The submissions made by
the Union on this point are not contained in the Majority's decision, but are fundamental
in coming to the correct decision in this case.
It is the Union's position that the payment received by the Grievor pursuant to
Article 11.12( c) of the Collective Agreement is a payment in exchange for the
employees' forfeit of their substantiallay-off, bumping, and recall rights guaranteed by
the provisiöns of Article 11 of the Collective Agreement. The pertinent sections of that
Article are reproduced as follows:
11.04(1)
An employee who is subject to permanent or long-term layoff shall have
the following entitlements: ,
a)
accept the layoff and be placed on a recall list for twenty-four (24)
months from the date the actual layoff begins¡ or .
(c)
accept the layoff, and thereafter, at the, Employers option, receive
pay in-lieu of notice and not be required to report for work during
the notice period. It is agreed and understood that during the
period of notice the employees wages and benefits will be
maintained as if he/she were at work. and that hislher layoff will be
deemed to have commenced at the end of the notice period.
the employee may displace an employee who has lesser bargaining unit
seniority and who is the least senior employee within his or her.
classification, identical paying classification, or lower paYing classification
in ~is or her discipline or department, if the employee onginally subject to
layoff can perform the duties of the least senior employee within his or her
clas~ification, identical paying classification, or lower paying" classification
in hís or her discipline or department without training other than
orientation.
b)
(d)
If the full-time employee cannot displace a full-time employee in
(c), the employee may displace a part-time employe.e who has
lesser bargaining unit seniority and who.is the least senior
employee in her classification, identical paying classification, or
lower paying classification in. her dis.cipline or department, if the
employee originally subject to layoff can perform the duties of the
least senior employee in her classification, identical' paying
classification, or lower paying cfa~sffication in h~r "discipline or
department without training other-than orientation.
(e)
If the part-time employee cannot displace a part-time employee in
(c), the employee may displace a full-time ,employee who has
lesser bargaining unit seniority and" who is the least senior
employee in her classification, identical paying classification, or
lower paying classification in her discipline or department, if the
employee originally subject to layoff can p~rfo,rm the duties of the
least senior employee in her classification, identical paying
classification, or lower payi£}g classification in her discipline or
department without training other than orientation.
If the employee cannot displace an employee in his or her
discipline or department, the employee may displace an employee
who has lesser bargaining unit seniority and who is the least
senior employee in a lower or identical paying classification in
another department, if the employee originally subject to layoff can
perfottn the duties of the least senior employee in a lower or
ideotical paying classification in another department without
training other than orientation.
(f)
(g)
(i) If the full-time employee cannot displace a full-time
employee in (f), the employee may displace "a part-time
employee who has lesser bargaining unit seniority and
who is the least senior employee in another department, if
the employee originally subject to layoff can perform the
duties of the least senior employee in another department
without training other than orientatipn.
If the part-time employee cannot displace a part-time
employee in (f), the employee 'may displace a full-time
employee who has lesser bargaining unit seniority and
who is the least senior employee in another department, if
the employee originally subject to layoff can perform the
duties of the least senior employee in another department
without training other than orientation.
, (ii)
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11.07
11.08
11.09
11.10
An employee shall have opportunity of recall from a layoff to an available
opening in his or he~ former classification, or an equal or lower paying
classification than the one from which the employee was originally laid off,
in order of seniority, provided he/she has the qualifications and ability to
perform the work, before such opening is filled o~ a regular basis under a
job posting procedure. The posting procedure in 'the collective agreement
shall not apply until the recall process has been completed. An employee
who is recalled shall be credited with the seniority he/she had at the time
of the layoff.
(a)
An employee recalled to work in a different classification from
which he was laid off, or an employee who has displaced an
. employee in a lower classffication shall be entitled to return to the
position he held prior to the layoff should it become vacant within
twenty-four (24) months of the layoff, provided that the employee
remains qualified and able to perform the duties of his former
. position.
No new employees shall be hired untii all those laid off have been
given an opportunity to return to worK.and have failed to do so, in
accordance with the loss of seniority provision, or have been
found unable to perform the work available.
(b)
(i) In addition to 11.08( a} a full-time employee who
has displaced a part-time employee shall be entitled to
return to the. P9sition he held prior to the layoff should it
become vacant within twenty-four (24) months of the layoff,
provided that the employee remains qualified and able to
perform the duties of his former position.
(ii)
In additiön to 11.08(a} a part-time employee who has
displaced a full-time employee' shall be entitled to retum to
the position he held prior .tå the layoff should it beco.me
vacant within twenty-four (24) months of the layoff,
provided that the employee remains qualified and able to
perform the duties of his former position.
The Hospital shall notify the employee of recall opportunity by registered
mail, addressed to the la~t address on record with the Hospital (which
notification shall be deemed to be received on the fifth day following the
date of mailing). The notification shall state the job to which the employee
is eligible to be recalled and the date and time at which the employee
shall report for work. The employee is solely responsible for his proper
address being on record with the Hospital.
Where there is an available opening. which has not been filled. in
accordance with Article 11.07, an employee who has either accepted a
layoff or is under notice of layoff and is unable to displace any other
employee will be given an opportunity for on-the-job retraining of up to 6
months, subject to the staffing requirements of the hospital, if,. with the
benefit of such retraining, the employee could re'asonably be expected to
obtain the qualifications and ability to'. perform the work. Such
opportunities will be provided in order of seniority. During the period of '
on-ilia-job retraining the recall period will continue to apply from the
original date of layoff. If, following the period of on-tha-job retraining the
employee has not obtained the qualifications and ability to ~ perform the
work, the employee will be returned to the recall list or will be terminated
in accordance with Article 10.09 (c). 3
11.11
In the event that an employee who has been laid off and is placed on a
recall list is assigned, by the Hospital, ad hoc shills or to a temporary'
vacancy, she will retain, but not accumulate his or her seniority and
service held at the time of layoff. Employees in such assignments will be
treated as part-time. Where an employee is recalled pursuant to Article
11.07, she will receive credit for service and seniority for shifts worked
under this provision. Any assignments under this provision will be. offered
on a voluntary basis.
Consideration of these provisions in conjunction with in Article 11.12{ c) clearly
supports the finding that the Union's interpretation of these provisions is the correct
one.
Had the Grievor received a long-term lay-off notice, she would have, absent any
Collective Agreement provisions, been entitled to the severance allowance contained in
Section 65 of the Employment Standards Act. Mere notification of that long-term lay-off
does not entitle her to the resignation allowance provided for in Article 11.12(c) of the
Collective Agreement. The two payments are not a duplication. Clearly, the payment
under Article 11.12{ c) of the Collective Agreement is a payment designed to
compensate the Grievor for resigning from her position within a limited period of time
following her notification of lay-off. By doing so, she has saved the emploY!3r the time,
expense and workplace disruption which would result if she chose to retain her
bumping and recall rights pursuant to Article 11 of the Collective Agreement.
I n interpreting the provisions of Article 11.12{ c) as merely a severance allowance
as a result of the long-term lay-off is to unjustifiably minimize the substantial rights
afforded to employees pursuant to Article 11.11 in the case of long-term lay-off. A
review of Article 11 demonstrates the large baskets of rights negotiated for by the
Union for employees in such a position. To conclude that the Grievor received minimal,
if any, compensation for the surrendering of these rights is an unreasonable
interpretation of the provisions of this Collective Agreement. The requirement under
'Article 11.12(c) for the employee to make the election to forego this substantial bundle
of rights within a very limited time period further emphasizes that the bargain struck
between the parties was to provide the laid-off employee with a financial benefit in
exchange for relieving the employer of the substantial burdens imposed upon them
under the terms of Article 11.
In conclusion, to find that the payment received by the Grievor in accordance
with Article 11.12{ c) of the Collective Agreement is in fact a payment for loss of
employment as envisioned by Section 65.8 of the Employment Standards Act grossly
minimizes the value to employees of the substantial bumping and recall protections
provided by Article 11. This grievance should have been allowed. An interpretation of
this Agreement which is consistent with a view of the Employment Standards Act as a
minimum standard for employees should have been preferred. Such an interpretation
would have recognized the substantial value to employees of the bumping and recall
rights in Article 11 of this Collective Agreement.
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