HomeMy WebLinkAboutKinsella 99-05-04IN Ttt£ MATTER OF /IN ARBITRA TION (.~110
BE TWE E N:
FANSHA WE COLLEGE
(The College)
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ONTARIO PUBLIC EMPLOYEES UNION
(The Union)
AND IN THE MATTER OF THE GRIEVANCE OF P. KINSELLA - #96A489
BOARD OF ARBITRATION: Kenneth P. Swan, Chairman
Robert J. Gallivan, College Nomine
Jon McManus, Union Nominee
APPEARANCES:
For the College: Barry Brown, Counsel
Gail Rozell, Director, Human Resources
For the Union: Maureen Doyle, Counsel
Gary Fordyce, OPSEU, Local 10
WARD
A hearing in this matter was held in London, Ontario on February 9, 1999, at which
time the parties were agreed that the board of arbitration had been properly appointed pursuant to
the collective agreement, and that we had jurisdiction to hear and determine the matter at issue
between them.
That matter is a grievance by Peter Kinsella, dated July 19, 1996, alleging a violation
of Article 27. It is agreed between the parties, however, that the real question is the grievor's
eligibility for payment of a lump sum gratuity under the cumulative sick leave plan pursuant to
paragraph 17.01(H) of the collective agreement. That provision, in context, is as follows:
Expiry of Credits
17.01 G Subject to 17.01 H, upon retirement, layoff or termination of
employment, any credits standing in the name of the employee shah be cancelled and
shall be of no effect.
Protection of Existing Rights
17.01 H Notwithstanding 17.01 G, employees hired before April 1, 1991, shall
be entitled to utilize available credits (or portions thereof) at the time of retirement,
termination of employment or layoff as a lump-sum gratuity calculated in accordance
with the terms of the pre-existing Cumulative Sick Leave Plans, where applicable and
where the employee is eligible and shall not exceed the amount of one-half the
employee's annual salary as of the date of separation.
The "pre-existing Cumulative Sick Leave Plans" referred to in the provision, which
has the effect of"grand-parenting" lump sum payout fights under those plans for employees hired
before April 1, 1991, originated in the Public Service ~4ct, 1961-62 and Ontario Regulation 190/62,
as they existed at the time of the creation of the Colleges of Applied Arts and Technology in 1967.
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Various memoranda issued around that time and thereafter modified the application of the Plans
somewhat for the purposes of the Colleges, until they were eventually incorporated by reference in
Letters of Understanding attached to the collective agreement, which simply continued them as they
were in operation on August 31, 1973. The Plans were of the well-.known sick leave accumulation
type, pursuant to which employees received an attendance credit for each month of regular
attendance, which could be used for sick leave with pay, or could be converted into a lump sum
gratuity upon retirement, termination of employment or lay-off.by an employee who had completed
"ten years' continuous service".
By an interest arbitration award dated November 28, 1989, arbitrator Teplitsky
imposed an new non-cumulative short-term disability plan effective April 1, 1991, subject to the
grand-parenting provision for lump-sum payout in paragraph 17.01 H quoted above. There is no
dispute between the parties that eligibility under paragraph 17.01 H, as under the pre-existing plan,
depends on the acquisition often years' continuous service; the only dispute is the application of that
qualification to the case of the grievor.
There is also no dispute about the details of the grievor's employment. He was
originally hired on a part-time basis from March 1985 to May 1986. From June 1986, he worked
continuously either in a partial load or sessional capacity until May 1988. Pursuant to the settlement
of a grievance filed in 1988, he was hired as a full-time employee effective May 27, 1988, with
seniority retroactive to June 1, 1986. He was subsequently laid offon December 22, 1988.
On June 26, 1989, he was recalled pursuant to the collective agreement to a full-time
position, and worked continuously until he was again laid off. on July 28, 1996.
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There is no dispute that the grievor had sufficient accumulated credits to be entitled
to a substantial lump sum payment if he was qualified. The only issue remaining is whether the
employment history detailed above constitutes ten years' continuous service.
The 'Union asserts that the grievor is qualified, and rests that assertion on two
alternative positions. First, the Union argues that his agreed seniority date of June 1, 1986 is by itself
sufficient to meet the qualification, since the documentation refers only to ten years' of continuous
service to qualify for a payout, and does not specify "full-time" service. The Union contrasts, in
various descriptions of the Plans, the language which permitted only full-time employees to
accumulate sick leave credits, but did not apply the same restriction of full-time continuous service
to qualifying for a payout.
The Union further asserts that the grievor's break in active employment because of
the lay-offin 1988-89 did not constitute a break in continuous service. In the Union's submission,
it would require very clear language to permit a lay-off, which is always at the instance of the
Employer, to break continuous service so as to disenfitle an employee from fights which would
otherwise vest.
We were referred to a number of arbitration awards, albeit not from the CAAT
system nor based on these particular Plans, which include statements of principle which are supportive
of the arguments made by the Union. But in every case, it is essential to look at the language under
consideration, and in the present case this is not negotiated language. Instead, in a series of collective
agreements, the sick leave Plans have simply been continued "as in operation on August 31, 1973."
Even in the collective a~eement under which this grievance arises, and in the course of which the
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Teplitsky award eliminated the sick leave Plans for aH practical purposes, there is such a preservation
of the Plans as in operation on the same date, until April 1, 1991 when the short-term disability plan
came into effect, and for the purposes of clause 17.01 H.
Therefore, the issue is a question of fact: what did the Plans in operation on August
31, 1973 provide in relation to the matters in dispute? The answer unfortunately is not perfectly
clear; there is nothing in the documentation which directly answers the question before us, and even
glosses placed on the operation of the Plan aider that date by its administrators do not directly address
the impact ofa lay-offon continuous service, although there has been some discussion after 1973 of
how to treat various agreed leaves of absence.
What is clear, from aH of the evidence, is that the Plans were only available to full-time
employees, and that all of the grievor's service prior to 1988 was in a different capacity. Can
someone who is not entitled to accrue any credits nevertheless be entitled to accrue continuous
service for the purposes of qualifying for a payout of those credits? On the face of it, that does not
seem reasonable. Most of the grievor's employment prior to May 27, 1988 did not even occur under
the collective agreement or within the bargaining unit as it then existed. The grievor's seniority was
back-dated in the course of settling his grievance, but only for the purpose of his effective seniority
date, and in circUmstances where, according to the docUmentation exchanged at the time, he and the
Union agreed to forego aH claims arising from previous work for the College, except to the extent
that previous work was recognized in the settlement.
Far more important, however, is the lay-off which occurred in 1988-89. If that
constitutes a break in continuous service, then the grievor cannot possibly qualify for a lump sum
payout. It therefore becomes very important to assess what effect a lay-off had pursuant to the
provisions of the Plans as they existed in 1973.
In our view, the most salient point in this regard is that a lay-off then, and now
pursuant, to paragraph 17.01 G, results in the cancellation of all sick leave credits accumulated,
subject only to the possibility of an immediate payment out of all or a portion of them pursuant to
paragraph 17.01G to a qualified employee. There can be no better indication that the intention of the
Plans, and of the parties in adopting the Plans by reference in Letters of Understanding attached to
the collective agreement, was that a lay-offwas the equivalent, for the purposes of the Plans, ora
termination of employment. The reasonable interpretation of the Plans as they existed in 1973,
therefore, is that they contemplated, as the College argues, that a lay-off terminates an employee's
membership in the sick leave Plans, and thus constitutes an irrevocable break in continuous service
for the purposes of the Plans.
On this basis, therefore, we are of the view that the grievance must be denied.
DATED AT TORONTO this 4~ day of May, 1999.
I concur "Robert J. Gallivan"
~ Robert J. Gallivan, College Nominee
I dissent "Jon McManus"
Jon McManus, Union Nominee