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HomeMy WebLinkAbout1996-1343BROWN_MURDOCH_ROGE ONTARIO EMPLOY~S 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 1ZB TELEPHONEITELEPHONE (41~) 32tJ-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1ZB FACSIMILEITELECOPIE (416) 326-1396 GSB # 1343/96 OPSEU # 960897 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Brown/Murdoch/Rogers) Grievor - and - The Crown in Right of ontario (Ministry of Municipal Affairs & Housing) Employer BEFORE w. Kaplan Vice-Chairperson FOR THE M McFadden GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE L Brossard EMPLOYER Counsel Legal services Branch Management Board Secretariat HEARING March 4, 1997 2 Introduction On June 13, 1996, Dawn Brown and Susan Rogers received letters informing them that their positions had been declared surplus Both grievors worked at the Oshawa office of the Rent Control Program The letters, which were dated June 14, 1996, informed them of two options under the collective agreement. One of the options was to request pay in lieu of notice The letters stated, in part, that "to take advantage of this option, you must forfeit all rights under the Collective Agreement, except the right to apply to restricted competitions " Both grievors were Informed that they had until June 18, 1996 to make their choice, failing which one of the options would be chosen for them After receiving this letter, Ms. Brown gave her supervisor, Carol Ashmore, a letter which reads as follows You have continuously told us that we are one office or "one pool of resources" Therefore I believe that surplus notices should be based on seniority as per article 24 1 I dispute receiving this notice Ms Ashmore also received a letter from Ms Rogers It reads as follows Since you arrived you've repeatedly said that Oshawa & Peterborough are one office or one pool of resources Therefore I believe that the surplus notices should have been based on seniority as per article 24 1 of the Collective agreement so I dispute receiving this notice At the time of these events, the Oshawa and Peterborough offices were co-managed by Ms Ashmore Both Ms Brown and Ms Rogers believe that there were individuals working in the Peterborough office who had less seniority than either of them and, accordingly, that it was those individuals, not them, who, given the fact that It was In their view one office, should have been given the surplus notices Both Ms Brown and Ms 3 Rogers brought their concerns to the attention of Ms. Ashmore and the employer with the letters set out above They also filed formal grievances alleging improper layoff dated June 28, 1996 (Another individual, Lynne Murdoch, also filed a grievance dated June 28, 1996 She is stili employed In the Ontario Public Service, and this award does not deal with her grievance) In the meantime, on June 17, 1996, both gnevors signed documents accepting the pay In lieu pursuant to Article 20.2 3 Above their signatures, these documents clearly indicate that one of the terms is that grievors will not be eligible for any further entitlements under the article Both grievors also received enhanced severance The Preliminary Objection When the case proceeded to a hearing in Toronto, employer counsel took the position that the grievances of Ms Brown and Ms Rogers should be dismissed Referring to the documentary record introduced into evidence, the employer noted that the letter received on June 13, 1996 informed the two grievors of the consequences of choosing the first option forfeiture of all rights under the collective agreement. Both grievors choose that option, and to do so they each signed forms resigning from the public service, forms which acknowledged the forfeiture of their collective agreement rights Counsel referred to Article 20 2 3 which states Where an employee accepts pay in lieu of notice pursuant to this article, any further entitlements under this Agreement are forfeited save and except any rights under Article 53 or 78 (Termination Payments) and Article 20.3 (Separation Allowance) or paragraph 4 of Appendix 9 (Employment Stability) The employee will be eligible to apply for 4 restricted competitions from the last day of work until twenty-four (24) months from the date on which lay-off would otherwise have occurred. In the employer's submission, this provision, as well as the other correspondence the grievors had received, not to mention the absolutely clear documents that they had signed, could not be more straightforward By acceptmg pay In lIeu of notIce, the gnevors gave up any further entitlements under the collective agreement. SImply put, the grievors had made a choice and must now lIve with the consequences of their decision Moreover, counsel argued, the employer relied on the actions of the grievors, and it would hardly be fair, gIven that reliance, for the grievors to subsequently be allowed to resile from their deal In further support of this submission, employer counsel argued that the letters the grievors initially filed were not grievances The employer also took the position that the grievances which they later filed came after they had executed the agreements and they thus had, by doing so, forfeited any further collective agreement rights, including any rights to enter into or proceed along the steps in the grievance procedure Indeed, counsel went so far as to take the position - one she conceded was admittedly harsh - that once an employee accepts pay in lieu of notice under Article 20 23, he or she would have no further collective agreement rights other than those specifically listed, and would not be entitled to grieve about anything during the remaining period, if any, of public service employment. One of the purposes of the provision was to terminate employment relationships and providing soon to be departed employees with access to the grievance procedure would, In the employer's View, be inconsistent with the primary purpose of the provision Accordmgly, and for all of these reasons and 5 others, counsel asked that the Brown and Rogers grievances be dismissed Union Response Union counsel made a number of submissions in response to the employer's preliminary objection First and foremost, union counsel argued that Ms Brown and Rogers had grieved Nothing, counsel noted, prescribed the use of a particular grievance form The letters they submitted clearly set out the nature of their dispute and made quite clear the remedy requested It was hard to see, in the union's view, how the employer could now assert that the grievances were not grievances and that the grievors had forfeited their collective agreement rights Certainly there was no evidence, in the union's submission, of any detrimental reliance on the employer's part. There was not even any evidence of reliance, counsel argued, all there was was an assertion to that effect. The union also took the position, in any event, that even if the initial written complaints were not grievances, both grievorsfiled grievances before they actually "accepted" any pay in lieu under Article 20.2 3 This fact was not contested - the payments came the following month That being the case, it was stili open to management, had it wished, to have taken the position that the grievors were not entitled to file their gnevances and for it to have then taken the necessary steps to suspend payments until the grievances were Withdrawn Here again, in the union's view, it was significant that management did not take this action In any event, the agreement had not, at the time the grievances were filed, crystallized, there was no consideration as no funds had been accepted 6 With respect to those funds, union counsel acknowledged that should the grievances proceed and succeed, both grievors may be required to make repayments to the employer Not only were both gnevors prepared to do so, counsel noted that there were provIsions in the collective agreement providing them with a mechanism to do so For all of these reasons, and others, union counsel asked me, in the unique circumstances of this case, to find that the Board had Jurisdiction with respect to the two gnevances in dispute Decision Having carefully considered the evidence and submissions of the parties, I am of the view that the employer's preliminary objection must be dismissed While various grounds were advanced in support of this conclusion, I base this decision on the fact that the two grievors believed that they were filing grievances - certainly their letters have all the hallmarks of grievances and for its part management could not have been more clearly informed that both employees were not only taking issue with the layoff notices that they had received but were alleging a violation of the collective agreement. Simply put, the grievors grieved It is hardly surprising that the grievors subsequently selected the option that they did First of all, they had very little time to consider their situation and to make their choice More importantly, if they had not selected the option they did they would have likely ended up in a less advantageous Situation, almost certainly, they would have lost their entitlement to enhanced severance What is important in all of thiS is not that they selected one option or the other, but that they did so after having 7 already grieved By filing a grievance, and then selecting the pay in lieu, the grievors put the employer on notice that they were selecting that option without prejudice to their entitlements, If any, under the collective agreement to assert a claim to a position in Peterborough Put another way, having grieved about the very matter in dispute, It was not up to either gnevors, as employer counsel suggested in her submissions, to indicate on the forms which they filled out that they were accepting this option without prejudice to their grievances. had management, which administers the collective agreement, wished this result, it could have asked for it. It is significant that it did not. Also significant in this case, is that both grievors put the employer on immediate notice that they disputed what management was doing before taking the only one of the two options that made economic and practical sense A few concluding observations are perhaps appropriate It seems to me that the important time period, as employer counsel argued, is when an employee "accepts" pay in lieu of notice not when he or she "receives" it. Accordingly, if these employees had accepted the pay in lieu of notice option but had not yet received it, and had not filed a grievance until after the option had been accepted with the consequences of doing so being clearly explained, as they were in this case, I would have almost certainly reached a different result That being said, and for whatever this additional observation IS worth, the employer's submission that once an employee accepts the Article 20 23 option he or she has no further rights to gneve about anything is a proposition that seems dubiOUS, at best. There may be circumstances where employees accept pay in lieu but, for a period 8 of time, remain in the public service And there may be circumstances where employees so situated have rights to grieve Each case will have to be decided based on its own particular facts Obviously, nothing in this decision disposes of any of the merits of the matters in dispute and when the case does proceed, it will be necessary to provide notice to anyone whose nghts may be affected Accordingly, and for the foregoing reasons, the employer's preliminary objection is dismissed and the case may be scheduled before any panel of the Board on the application of either party DATED at Toronto this 11th day of March 1997 tt/ /~ William Kaplan Vice-Chairperson