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HomeMy WebLinkAbout1996-0954BARICHELLO96_08_07 -....,.. ONTARIO EMPLOYlS 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 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MOO 1Z8 FACSIMILEITELECOPIE (41C) 326-1396 GSB # 954/96 OPSEU # 96F545 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Barichello) Grievor - and - The Crown in Right of ontario (Ministry of Consumer & Commercial Relations) Employer BEFORE R J Roberts Vice-Chairperson FOR THE G Leeb GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE C Nikolich EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING July 25, 1996 ~ 1 AWARD At the outset of the heanng 111 thIS matter, the partIes 111formed the Board that this was m the nature of a test case, m that they had agreed to apply the outcome of thIS arbItratiOn to some 40 to 50 other outstandmg gnevances. All ofthese gnevances, mc1udmg the one at hand, raIse the questiOn whether tlme spent dunng the five-week penod of the stnke should count toward the sIx-month notIce penod of those employees who receIVed a surplus notlce pnor to the strike and elected not to bump Artlcle 24 2 1 of the 19Q2-93 collectIve agreement, WhIch governed the relatiOnshIp between the parties pnor to the stnke, proVIded as follows 24.2 1 An employee shall receIve SIX (6) months' notice of lay-off or pay m heu thereof. It was explamed at the heanng that ArtIcle 24.2 1 operated m practIce 111 the followmg manner If an employee who receIved notlce of surplus elected to take the layoff optiOn prOVIded m artIcle 24.2 1 he or she mIght be allowed to leave work immediately and receIve SiX months' pay m heu of notlee however if the employer sensed that It would have a contmumg need for the employee's servIces, the employee would be reqUired to work out hIS or her sIx-month notIce - -~ 2 penod. It was up to the employer to make this decisIOn, In all of the gnevances to be governed by thIS test case, the gnevors were reqmred by the employer to work out then sIx-month notIc.e penods. When the stnke took place, however, the employer counted the time these employees spent off work dunng the five weeks of the stnke as part of their notice penods. ThIS meant that these employees only receIved four months and three weeks-worth of paid work rather than the entIre SIX months ThIS actIOn by the employer led to the gnevances gIvmg nse to the mstant test case At the heanng, the umon claimed that the tIme off that the employees In questIOn spent dunng the stnke should not have been counted toward the expIratIOn of theIr sIx-month notIce penods. Instead, It was submItted, the employer should have recalled these employees to work out the remamder of theIr notIce pen ods after the stnke ended. Because a recall of thIS nature now seemed ImpossIble In most cases, counsel for the umon suggested that the proper remedy would be to reqmre the employer to pay the employees In questIOn the five weeks worth of pay that they dId not receIve Counsel for the umon rehed upon two grounds for thIS claim These were (1) ArtIcle 4 1 ofthe Return to Work Protocol, whIch reads, In pertInent part, as follows For employees who were or are In receIpt of a notice of surplus at the onset of or dunng the stnke, the penod of the stnke shall not be counted In their surplus - ., .J notIce penod, regardless of whether they have been determmed to be essentlal or emergency serVIce workers. , and, (2) The express wordmg of artlcle 24.2 1 of the collectIve agreement, as It eXIsted pnor to the stnke These grounds WIll be addressed m order herembelow (1) Article 4 1 of the Return to Work Protocol. ArtIcle 4 1 of the Return to Work Protocol expressly provIdes that "the penod of the stnke shall not be counted m" the surplus notIce penods of employees who receIved theIr notlces "at the onset of or dunng the stnke " GIven Its plam meamng, thIS provlSlon would appear to support the posltlon of the umon that the five weeks of the strike were not to be counted toward the SIX- month notlce pen ods of the employees m questIOn. Counsel for the employer, however, submItted that artIcle 4 1 of the Return to Work Protocol should not be gIven ItS plam meanmg. Rather, counsel submItted, thIS provlSlon should be read as If It stated Just the OppOSIte, i e that the penod of the stnke shall be counted toward the surplus notIce penods of the employees m questIOn. The reason for thIS, counsel submItted, was that artIcle 4 1 was worded dIfferently from other artlcles of the Return to Work Protocol that preserved other nghts of employees dunng the penod of the stnke Counsel pomted to artIcle 4.2 of the Return to Work Protocol, whIch preserved the duratIOn of --=- 4 trammg or temporary assIgnments of surplus employees who chose the optiOn of, e g a Job offer guarantee rather than accept layoff. ThIS provIsiOn charactenzed the stnke as a "hIatus penod" whIch would not affect the duratiOn of theIr assIgnments. It was suggested by counsel that If the partIes had SImIlarly mtended that the strike should not affect the duratiOn of the notIce perIods of employees who accepted layoff, they would have done so usmg SImIlar "hIatus-type" language to descrIbe the perIod of the strIke Bnef reference was also made to artIcle 1 1 .of the Return to Work Protocol, whIch proVIded that "[t]Ime spent on strike shall not mterrupt contmuous serVIce of an employee" for varIOUS purposes, artIcle 1.2, WhICh proVIded that "[t]Ime spent by an employee on strIke shall not trIgger artIcle 25 4 (TermmatiOn ofContmuous SerVIce), artIcle 1 4, whIch stated that "[t]Ime spent by an employee on strIke shall not affect calculatiOn of 'contmuous dIsabIlIty"', and, artIcle 1 5 whIch stated that "[t]Ime spent by an employee on strIke shall not affect calculatiOn of qualIficatiOn for Long Term Income ProtectiOn benefits" It was submItted that If the pm'tIes had mtended for tIme spent on strike not to count toward calculatiOn of surplus notIce penods, they would have Said so In a smular fashiOn. In my opImon, It would take far more convmcmg eVIdence than thIS to persuade me to reject the plam meamng of artIcle 4 1 of the Return to Work Protocol and substItute therefor preCIsely the OppOSIte constructiOn. The other proVISiOns ofthe Return to Work Protocol that were relIed upon by the employer tend only to demonstrate that m draftmg thIS agreement the partIes used at least two other forms of expreSSiOn to IdentIfy CIrcumstances m whIch tIme spent on strIke would not -. 5 affect partIcular benefits or nghts of members of the bargammg umt. ThIs lack of consIstency IS not surpnsmg, gIven the tIme constramts under whIch the Return to Work Protocol was negotIated, drafted and executed. It seems, however, that a demonstrated lack of consIstency would tend more strongly to support gIvmg artIcle 4 1 ItS plam meamng than to reject It. The plam meamng of artIcle 4 1 of the Return to Work Protocol IS that the five-week penod of the stnke IS not to be counted toward the sIx-month notIce penods of employees who receIved surplus notIces at the onset of, or dunng, the strIke The employer breached thIS provISIon when It decIded to treat the five weeks of the strike as part of theIr notIce perIods (2) Article 24.2.1 of the Collective Agreement. GIVen the result reached under artIcle 4 1 of the Return to Work Protocol, above, It mIght be Said to be unnecessary to proceed to the second ground rehed upon by counsel for the umon. EssentIally the submISSIon of counsel for the umon upon thIS ground was that the surplus employees herem acqUIred a vested nght to eIther (1) SIX months of paid workmg notIce, or, (2) SIX months pay m heu of notIce when the) chose the lavoff optIOn of artIcle 24.2 1 of the collectIve agreement. It may be helpful, however to dIrect a few words in dictum toward thIS submISSIOn. ThIS submISSIon seemed to make a great deal of sense A, preVIOusly mdlcated m thIS award, - 6 when a surplus employee chose the layoff optiOn of artIcle 24.2 1 of the collectIve agreement, the employer got the chOIce of eIther retammg the employee for the SIX month notIce penod or releasmg the employee wIth SIX months pay m heu of notIce It was all up to the employer If the employer chose to release wIth SIX months pay m heu of notIce, the surplus employee undoubtedly receIved SIX months of pay regardless of the mterventiOn of the stnke Should a surplus employee be reqUired to bear the nsk of recelvmg less If, as here, the employer chose to reqUire hIm or her to work out the notIce penod? As a matter of reason, It does not seem so Those wIth the power to make a ChOIce should be reqUired to bear the nsk assocIated wIth makmg It. In thIS case, that IS the employer Under artIcle 24.2 1 of the collectIve agreement, the surplus employee remams entItled to SIX months of pay, regardless of whether the employer chooses to reqUire hIm or her to work out the notIce penod. It also would seem that thIS entItlement surVIVed the termmatiOn of the collectIve agreement at the mceptiOn of the stnke ThIS entItlement arose, or vested, dunng the COllrse of employment of the surplus employees. At that tIme, the relatiOnshIp between the partIes was stIll governed by the old collectIve agreement, mcludmg artIcle 24 2 1 As was SaId by V Ice ChaIr W Kaplan m Re Pltlrn and Mlnistry of Correctional Services (1993), G S B Nos 1685/92 et seq "In our VIew, where a collectIve agreement entItlement anses dunng the course of employment, m some CIrcumstances the mdlvldual may remam an employee for the purpose of filmg a gnevance after the employment relatiOnshIp has come to an end." ld. at 14 ThIS would appear to be one of those CIrcumstances. ~::- 7 (3) Remedy ThIs bnngs me to the questIOn of remedy It seems to me that In cases In WhICh the employer stlll has a need for a surplus employee's serVIces, the appropnate remedy IS to reqUIre the employer to recall hIm or her to perform paid work for the outstandmg five weeks of the notIce penod. Where no such need eXIsts, the employer IS reqUIred to gIVe the surplus employee five weeks-worth of pay In heu. The employer IS granted a reasonable tlme In whIch to eIther recall or make payment. I wIll retamjUnSdlctIOn pendIng ImplementatIOn of thIS remedy Dated at Toronto, OntarIO, thIS 7 if{ day of August, 1996 -., ---. I ...--";:" II R, Jack 0 rts, V Ice Chair I / I I I I ,