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Home My WebLink About1993-1915.D'Eon.96-05-21 ~ ~ - -' --. .. . y , ONTARIO ,J.. EMPLOYES DE LA COURONNE (}!~l, CROWN EMPLOYEES' DE L'ONTARIO 1111 GRIEVANCE CPMMISSIO,N DE '~C(W"'. ro.V\ . . \J.(\t . 1JV~\cY SETTLEMENT R~GLEMENT \--OJ SuvJ)l BOARD DES GRIEFS I 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARfO. M5G lZ8 TELEP80NEITELEPHONE (416) 326....1388 I 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG 1Z8 FACSIMILE ITEuicOPIE ! (416) 326-1396 I ! I I GSB # 1915/93 0- I I OPSEU # 93F923 i I I IN THE MATTER OF AN ARBITRATION I I I Under I I I THE CROWN EMPLOYEES COLLECTIVE BARGArNI~G ACT j Befor~ THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (O'Eon) Grievor - an4 - The Crown in Right of ontario (Ministry of the Solicitor General ~ Correctional Services) Employer \ Vice-Chairperson BEFORE 0 Gray FOR THE L. Yearwood GRIEVOR Grievance Officer ontario Public Service Empioyees Un~on FOR THE G. Basanta EMPLOYER Grievance Administration Officer ~inistry of the Solicitor General & Correctional Services HEARING April 30, 1996 ~ f ......-,... .. ....,...-. ". DECISION On October 28, 1993, Laurie PatriCIa D'Eon filed the following grIevance STATEMENT OF GRIEVANCE The employer has dIsallowed my severance allowance and termmatlOn payments. SETILEMENT DESIRED Grievance settlement desired is to have the severance allowa~ce and termmatlOn payments pmd to me m full with bank interest compounded on all monies owmg. . I This grievance came before me for arbItration pursuant to the expedIted arbI- tratIOn procedure The partIes exchanged proposed statements of fact before the 4earIng. The only POInt on whIch they dIsagreed was the dollar amount of sever- ance allowance or terminatIOn pay to whIch the grIevc;>r would have been entitled if she had any entitlement at all, which is m dispute. The parties agreed to defer any determmatIOn of the ~mount until the questioI). of entItlement was deter- mined. The grIevor joined the publIc service ?S a full-time Library TechnicIan on May 30, 1988 She was serving in that capacIty at the Burtch CorrectIOnal Cen- tre ("Burtch") when, on June ~, 1993, she grIevor received a notIce of laY-Qff from employment In accordance WIth SectIOn 24.2 of the collective agreement then In force. Among other tlungs, the notice describ~Q her options. under sectlOns24 3 1 and 24 3 2, whIch provided for separation allowance whel1 an emplpyee "resIgns after reCeIVing surplus notice" There is no eVIdence that the griev.or r.esIgned, eIther then or at any time thereafter When she receIved her surplus notice, the grIevor thought that there I would probably be a posting for a regular part-time ClliPT") Library TechmcIan posItion at Burtch. She planned to apply for It If there was. Such a posItion was I posted on July 5, 1993 Only MinIStry employees working at Burtch or hvmg I WIthin 40 kIlometers of Burtch could apply The grIevor apphed. Thereafter, she made mquirIes of variOUS people about whether she would receIve a severance ------- I -_.~",. , -.~ J.. - 2 - allowance or termInatIOn pay wIth respect to her perIod of full-tIme' employment. If her applicatlOn for the part-time pOSItIon was accepted. She does not claIm that anyone actIng 'on behalf of the employer tol9. her that she would receive eI- ther severance allowance or termmation pay m those CIrcumstances The grIevor was notIfied by letter dated August 25, 1993. tnat she was the successful applIcant for the RPT positlOn, and that she would be appomted to that positlOn effectIve December 1, 1993 : As a result of a conversation she had WIth her brother, who IS a lawyer, on October 13, 1993 the grIevor made an oral complaint about her rIghts to "a sepa- ration package" to the Senior Assistant Supermtendent at Burtch. ThIS was fol- lowed by the filmg of the grIevance. The grIevor worked at Burtch. as a full-time Library TechmcIan up' to the end of November, and as a regular part-tIme LI- brary TechmcIan thereafter The theory put forward on thegrIevor's behalf is that despite her having applied for the RPT posItlOn m August 1993 and been accepted as the successful candIdate, the surplus notIce she had received 6n June 1, 1993 continued to qp- erate and her employment was termInated effective December 1, 1993 Then, she says, the appomtment provided for in the "letter of August 25, 1993 effected her relurmg as of December 1, 1993 Accordmg to this argument there was thus a gap m her employment, and she became entItled to terminatIon P:;l.y under See bon 53 of the collectIve agreement WIth respect to her perlOd .of full-tIme em- ployment up to December 1, 1993 She says that upon her rehirIng~that day she would have had the optlOn (wluch she says she would .not have exercIsed) under sectIOn 53 8 tQ restore termmatlOn pay enbtlement WIth respect to the perlOd of her employment up to that date by "repaymg" the termmation pay to which she . - I had become entltled. At some pomt It appears that the grIevor claimed separatlOn allowance m the amount provided for m eIther sectIOn 24 3 1 or se"ction 24 3.2 To qualIfy for an allowance under one or other of these sectIOns an employee must reSIgn after receiving a surplus notice It is apparent from the context that "resign" means reSIgn from employment as a publIc servant. The grIevor dId not purport to re- SIgn at any relevant tIme. ~-- --I I ~ I ~ l. ._.._..... - ~- .., '" 4. ).. , .3. ! ! TermmatIOn pay under section 533 IS payable only to someone who "ceases to be an employee." 'I do not accept the argument that the gnevor ceased to be an employee for a brIef.period on December 1, 1993 The notice of June 1, 1993 dIP' not say that the grIevor's employment would lnevitably end on Decem- ber 1, 1993 Its message was essentially that she would be released on that date unless m the meantime she eIther reSigned or was redeployed into another POSI- tIOn. Although the redeployment process contemplated by the notice was focused on full-time POSItiOns, the appomtment whIch resulted from the gpevor's volun- tary application for the RPT posItIOn had the same ~ffect as redeployment. ItSU perseded the prospect of release of whIch the grlevor had been notified earlIer in the letter of June 1, 1993 Although the grIevor changed posItIOns on Decem- ber 1, 1993, her employment as a publIc servant contmued umnterrupted. Accordmgly, the grievor was not entItled to either ~eparation allowance or termmatIOn pay ThIS gnevance IS therefore dIsmissed. Dated at Toronto this21 day of May, 1996 ------- ,// .. / /" ;-: / IIJ//~ , f'//~~ V~ (':: cf;ert vt;;;;, Vice:ChaIr 7 ! ~