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HomeMy WebLinkAbout1996-0667UNION96_07_15 - / ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100. TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST, BUREAU 2100. TORONTO (ON) M5G 1Z8 FACSIM1LE/TELECOP1E (416) 326-1396 GSB # 667/96 OPSEU # 96U076 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario (Management Board Secretariat) Employer BEFORE W. Kaplan Vice-Chairperson FOR THE G. Leeb GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE S Patterson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING July 11, 1996 -" 2 / Introduction This case concerns the interpretation and interplay of two provisions of the new collective agreement, Article 24 3 and Appendix 14, Paragraph 4 The provisions are as follows 24.3 SEPARATION ALLOWANCE 24.3.1 When an employee resigns and his/her resignation takes effect within one month after receiving surplus notice, he/she shall be entitled to a separation allowance of two (2) weeks' salary for each year of continuous service to a maximum of twelve (12) weeks' pay On production of receipts from an approved educational program within twelve (12) months of resignation, the employee may be reimbursed for tuition fees up to a maximum of three thousand dollars {$3,OOO} An employee who resigns pursuant to this Sub-section will not be eligible for any other entitlements under Article 24 24.3.2 Where an employee resigns later than one month after receiving surplus notice, he/she shall be entitled to a separation allowance of four (4) weeks' salary, plus on production of receipts from an approved education program within twelve (12) months of resignation, may be reimbursed for tuition fees to a maximum of one thousand two hundred and fifty dollars ($1,250) An employee who resigns pursuant to this Sub-section will not be eligible for any other entitlements under Article 24 APPENDIX 14 The Government is aware that its restructuring initiatives over the next two fiscal years...could have a significant effect on employees, some of whom have served for a lengthy period. Accordingly, commencing with the ratification of the collective agreement and ending on December 31, 1998, the Employer undertakes the following 4) Employees who are laid off or who have resigned and received their pay in lieu of notice pursuant to Article 24.2 will receive, in addition to their Article 53 or 81 termination payments, a further severance package of one (1) week's salary for every completed year of continuous service This paragraph will not apply to employees who are eligible to retire and receive an actuarially unreduced pension Employees who are entitled to the amounts specified in Article 24.3 shall receive the greater -,~ / 3 /' of those amounts or the amount specified in this paragraph (For the sake of clarity, it is understood that a person who resigns pursuant to Article 24.3 shall be considered to be laid off for the purpose of this paragraph) This paragraph will not apply to employees described in paragraph 1 who are transferred to a new employer or, subject to 1 (b), who decline a transfer to a new employer Background On or about June 18, 1996, the employer Issued a memorandum interpretmg these two provisions, the salient part of which provided Pis note that an employee is only entitled to the tuition fees if he/she receives the separation allowance There is no entitlement to the tuition fees if employee receives the enhanced severance. The above also applies to employees leaving after one month. If the employee will receive the enhanced severance, he/she will not be entitled to the $1,250 tuition fees. (Emphasis not mine.) On June 27, 1996, a union grievance taking issue with this interpretation was filed, and on July 11, 1996 it proceeded to a hearing in Toronto Union Argument In the union's submission, employees who resign following receipt of a surplus notice receive the greater of either the amount provided for under Article 24 3 or the amount provided for under Appendix 14 These amounts, the union argued, had nothing to do with the tuition reImbursement provided for in Article 24 3 Appendix 14, Paragraph 4, required that departing employees receive the greater of the two amounts, and that figure could not, for both practical and obvious reasons, include tuition reimbursement of indeterminate amounts that might or might not be requested in the following twelve months There really was little doubt, in the union's view, that the amounts being compared were the Separation Allowance and the - ,,- 4 Enhanced Severance These were two determinate amounts, and a plain reading of the provisions required that the employee receive whichever of these two amounts was greater Not only did the language of the provisions dictate this result, so too, the union argued, did common sense The whole purpose of these provisions was to encourage voluntary departures upon receipt of surplus notification There was obvious benefit to the employer if employees left within thirty days, and as an added incentive for employees to do so tuition reimbursement to a maximum amount was provided for On a practical basis it was extremely unlikely, to say the least, that any employee would be In position to know what educational programs he or she was interested in attending, and this was yet another reason for finding that the tuition reImbursement was quite separate and apart. In the union's submission, had the parties Intended to include the tUition reimbursement in the "amount," assuming for the sake of argument that it was even possible to do so, then they would have written language to that effect. It was significant that they had not. Accordingly, and for the foregoing reasons, the union asked that I uphold the grievance and issue a declaration to that effect. Employer Argument In the employer's submission, the word "amounts" had to include the amount of tuition available for reimbursement under Article 24 3 Had the parties wished to limit these provisions so as not to include tuition they would have, counsel argued, used the word "amount." This pluralization was significant and it was also dispositive Furthermore, the employer took the position that the two provisions at issue were essentially directed at - /' /' 5 different categories of employees Article 24.3 was likely to be of the most benefit to more Junior employees, while Appendix 14 was likely to be of most benefit and interest to more senior employees Seen in this way, each of these provisions offered different things to different groups of employees, but In either case the value of what was being offered had to be determined and when it was the employee was effectively given the option of choosing between the two Moreover, counsel argued, there was absolutely no reason to believe that the parties intended to give employees exiting under Appendix 14 the benefits of Article 24 3 If the parties had wished to achieve this result, they would have, counsel argued, said so The fact that the amount of tuition reimbursement might, in some cases, be difficult to calculate was an administrative issue that the parties could work out. What was Important was that It be recognized that the amount of tuition reimbursement was an amount to be included in the calculation of the Separation Allowance, and then compared with the amount available under Appendix 14, Paragraph 4 For all of these reasons, counsel asked that the union grievance be dismissed Union Reply In reply, the union argued that the position advanced by management failed to recognize the underlying purposes of the provisions at issue These provisions were there to encourage people to leave Quite clearly, in the union's submission, the parties intended that individuals in receipt of the enhanced severance would continue to qualify for the tUition reimbursement. Why else, Mr Leeb asked, would they have added to Paragraph 4 the sentence stating that "a person who resigns pursuant to Article 24 3 shall be considered to be laid off for the purpose of this / 6 ,. paragraph" That sentence only made sense If it was, along with the rest of the provision, mterpreted so as to allow employees in receipt of the enhanced severance, assuming it was greater than the separation allowance, to continue to qualify for the tuition reimbursement The union again asked that the grievance be allowed and that I issue a declaration to that effect. Decision Having carefully considered the evidence and arguments of the parties, I have come to the conclusion that this grievance must succeed In my view, when the two provisions are read together it is clear that the amounts being compared are the amounts of separation allowance and enhanced severance pay which are immediately available under each of the provisions One of the purposes of Article 24 3 is to encourage surplused employees to quickly leave the public service, while the intention of Appendix 14, Paragraph 4 is to provide enhanced severance for departing employees, in partial recognition that government downsizing "could have a significant effect on employees, some of whom have served for a lengthy period of time" In either case, the employees are entitled to, and must, under Paragraph 4 be given, whichever amount is greater, and that, I find, must be the amount that can on departure, be immediately calculated and paid According to a government interpretation bulletin introduced into evidence, the amount available under Article 24 3 is "deemed to be the total of the separation allowance plus the maximum tuition reimbursement" (emphasIs not mine) However, this is not what the collective agreement says What " 7 the collective agreement requires is that the employee be given the greater of the two amounts, and given the language of the two provisions, the two amounts which are being compared are the separation payment available under Article 24 3 and the enhanced severance available under Appendix 14, Paragraph 4 In addition to providing that departing employees receive ti1e greater of these two amounts - and it IS worth noting, contrary to what IS stated in the government's interpretive bulletin, the employee must receive the greater of the two amounts, there is no element of choice - employees departing pursuant to Article 24 3 may, if they elect, receive tuition reimbursement for approved programs to a maximum amount for an ascertained period of time Quite clearly, these reimbursements are provided as a bonus to encourage surplused employees to leave, and given the structure of the bonus, to leave quickly But this reimbursement has nothing to do with the calculation of the two amounts Employ~r counsel argued that the use of the words "amounts" rn Paragraph 4, in reference to Article 24 3, signaled the intention of the parties that tUition reimbursement be included With respect, this is not a submission with which I can agree The fact of the matter is that, with rare exceptions, the amount of tuition reimbursement, if any, that an employee may, or may not, claim will not be known upon departure from the public service The word "amounts" obviously refers to the amounts available as a separation allowance to employees departing under either Article 24 3 1 or 24 3.2 It is noteworthy that each of these provisions provides f.Jr a different formula and, therefore, different amounts In neither case, however, do the amounts have anything to do with the tuition reimbursement that an employee might subsequently claim 8 /' Had the parties wished to disqualify employees from receiving the tUition reimbursement they would have said so The manner in which they drafted the provision indicates that the amounts which they wished to compare were determinate monetary amounts. Not only is this the interpretation that the collective agreement requires, it is also the interpretation that makes sense There is simply no way of knowing which employees will apply for tuition reimbursement in the twelve months following their departure from the public service, and in what amounts Employer counsel also attempted to minimize the practical difficulties in determining the relative amounts for comparison purposes However, these difficulties are real and would present an unsurmountable barrier to the determination of the amounts at the time of departure, or within any reasonable period thereafter Employees, on departure, are entitled to the greater of the two amounts, either the separation payor the enhanced severance Tuition reimbursement has nothing to do with the calculation of either figure, or with an employee's collective agreement entitlement to the greater of the two "amounts" Accordingly, and for the foregoing reasons, the gnevance is upheld I declare that the employer's practIce IS contrary to the collective agreement. I remain seized with respect to the implementation of this award DA TED at Toronto this 15thday of July 1996 11/ /---- William Kaplan Vice-Chairperson