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HomeMy WebLinkAbout1998-0101.Allore.98-08-24 Decision ONrARJO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARJO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 128 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 0101/98 CUPE 1842 IN THE MATTER OF AN ARBITRATION . Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CanadIan Umon ofPubhc Employees, Local 1842 (Wilham ABore) Grievor - and - The Crown m RIght of Ontano (Mimstry of Health/Trenton DIstnct Ambulance ServIce) Employer BEFORE RH. Abramsky Vice-Chair FOR THE Ralph Carnovale UNION N atlOnal RepresentatIve CanadIan Umon ofPubhc Employees FOR THE Donald K. Robmson, Q C EMPLOYER Counsel Mathews, Dmsdale & Clark Bamsters & SohcItors HEARING July 23, 1998 m Trenton, Ontano AWARD At Issue IS whether the gnevor, Wilham Allore, IS entItled to severance pay under ArtIcle 16 07 of the partIes' collectIve agreement. ArtIcle 16 07 provIdes, m pertment part, as follows . Severance Pay EntItlement An employee who has completed a rmnImum of five (5) years of contInUOUS unInterrupted servIce and ceases to be an employee because of death, retIrement or release of employment shall be entItled to severance pay for contInUOUS servIce In the amount equal to one (1) week of the then current regular salary of the employee for each year of contInUOUS servIce up to a maXimum of twenty-sIx (26) week spay commencIng April 1, 1978 Facts The facts are not m dIspute In April 1975, the gnevor was illred as an Ambulance Attendant wIth the Employer (or, more accurately, ItS predecessor) and worked In that posItlOn until he mJured hIS back on the Job on January 5, 1994 After a few weeks rest, he returned to work but expenenced dIfficulties and stopped workIng on May 4, 1994 He has not returned to work smce then, although he retamed ills employee status, ills seruonty and benefits In November 1994, he underwent back surgery and hIS doctors determIned that It was unlikely that he could ever return to work as an Ambulance Attendant gIven the phYSIcal demands of hIS Job Consequently, - In July 1995, he began a 2 RehabihtatlOn/RetraIrung Program under the auspIces of the Workers CompensatlOn Board (WCB), at the CDI College of Bus mess and Technology m KIngston, Ontano In September, 1996, Mr Allore completed hIS coursework as a Computer Network SpecIalIst, and In November, he began on-the-Job traIrung WIth CDI as a Network Lab T echrucIan. In January 1997, Mr Allore was illred on a sIx-month contract by CDI as a Network Lab TechrucIan, at 65% of ills Ambulance Attendant wages The balance of hIS salary was topped-up by the WCB On July 2, 1997, the gnevor was offered a full tIme posItlOn WIth CDI as an Instructor Shortly thereafter, Mr Allore contacted SupervIsor Fred SqUIer about tills opporturuty WIth CDI at whIch tIme they also dIscussed separatIon and severance pay from Trenton DIstnct Ambulance ServIce On July 15, 1997, Mr SqUIer contacted the ReglOnal Office of the Mirustry of Health regardmg the gnevor's sItuatlOn and was advIsed that he should submIt a letter of resIgnatlOn from the employee, along WIth the amount of severance and a copy of the collectIve agreement clause He then passed thIS InformatlOn on to Mr Allore - 3 In response, on July 15, 1997, Mr Allore drafted a letter of resIgnatlOn, wruch he gave to Mr SqUIer That letter states, In pertment part, as follows Dear Fred It IS WJth great regret that I submIt to you my notIce of resIgnatlOn from Trenton DIstnct Ambulance ServIce Ltd, I have enJoyed my employment wIth both you and Barb as well as the prevIous owners It IS WIth mIxed feehngs that I send trus letter It IS very hard to gIve up sometillng that means so much to you. If It was my decISIon to qUIt that would be one trung, but when you are forced by sometrung over wruch you have no control It makes It that much more dIfficult. Although my resIgnatIon IS dated today I will not fully consIder dIscharge to be effectIve until my severance pay IS Issued to me At that tIme I will no longer be part of the company that I have enJoyed for the last twenty- three years It was a pleasure workIng wIth you Fred throughout all those years and I hope the frIendshIp we enJoyed dunng that tIme will contInue as long as possible Thank you both very much for your concern and dedIcated Interest In the past. Yours sIncerely, /s/ Wm J Allore Empl. #51721 On July 28, 1997, Trenton DIstnct Ambulance ServIce Owner/Operator Barbara SqUIer sent a letter about Mr Allore's severance pay to Mirustry of Health AssIstant ReglOnal Manager Frank Payette That letter, In pertment part, states as follows Re SEVERANCE PAY - WM. ALLORE Dear Frank, - I am requestIng One Time Fundmg for Wm. Allore's Severance pay Wm, Is entItled to 1 weeks pay per year from April 1 st, 1978 until 1994 when he 4 became dIsabled wIth a back InJury & was unable to return to work as an Emergency MedIcal Attendant. SInce that tIme he has been retraIned through W C,B & IS now teacillng a course In Computers at KIngston UnIVersIty The funds that we reqUIre to pay the Severance Pay IS $1796 x 42 Hrs. x 167/12 Years = $12,509 14 Enclosed Uruon SEVERANCE PAY ENTITLEMENT ArtIcle 16 07 Yours truly, /s/ Barbara M. SquIer Owner! Operator c c Wm. Allore On August 5, 1997, the gnevor was adVIsed that he was not entItled to severance pay, and on August 25, 1997, he filed a gnevance claImmg a vlOlatlOn of ArtIcle 1607 On September 3, 1997, SupervISor SqUIer advIsed the Uruon and Mr Allore that he was not entItled to severance pay because he dId not meet the cntena set out In ArtIcle 16 07 On September 19, 1997, Owner/Operator SqUIer further clanfied the posItIon of the Employer to Mr Allore as follows Dear Mr Allore Re SEVERANCE PAY APPLICABILITY I am wntIng to clanfy the posItlOn of the company wIth regard to the above On reCeIVIng your letter of July 15, 1997 the company forwarded It together wIth our contract etc to our legal support staff for conSIderatIon and analYSIS. When the report was receIved, I sent It together wIth my recommendatlOns to the Mirustry of Health wIth a request for fundIng support. It was derued. 5 The official posItlOn of the company IS that you were not dIsrmssed but, unfortunately, you are unable to return to the posItlOn. Thus, severance does not apply Weare pleased that you have been able 0 take advantage of the retraIrung opporturutIes through W C.B (Wruch we fund) and that you are now able to return to productIve employment. I wIsh you the best m your future endeavors and thank you for your years of sefV1ce wIth the ambulance servIce Yours very truly, /s/ Barbara M. SqUIer Operator c c Frank G Payette, AssIstant ReglOnal Manager Lmda Dumbleton, C U.P.E , RepresentatIve The gnevance was subsequently referred to arbItratlOn. Arguments of the Parties The Druon subrmts the Employer's failure to pay Mr Allore severance pay vlOlates ArtIcle 16 07 of the collectIve agreement It contends that the July 15, 1997 "letter of resIgnatlOn" was not a bona fide letter of resIgnatlOn, but mstead was wntten, at the Employer's request, m order to obtam rus severance pay It further argues that the letter, by ItS terms, IS condItlOnal upon the payment of hIS severance pay wruch has yet to occur Consequently, the Druon argues that Mr Allore dId not resIgn from rus employment on July 15, 1997 In the Druon's subrmsslOn, Mr Allore's actlOns meets neIther the subJectIve nor obJectIve tests reqUIred for a true resIgnatlOn, cItmg Re Metropolitan Authority and A.T U, Local 508 (1988), 1 LAC (4th) 20 (Cotter), Re Workers' Compensation Board and Workers Compensation Board Employees Union (1987), 31 6 L A.C (3d) 129 (Larson), Re Brookfield Foods Ltd, Div of Scotsburn Co-Operative Services Ltd and Canadian Brotherhood of Railway, Transport & General Workers, Local 503 (1987), 31 LAC (3d) 292 (Darby) Instead, the Druon subrmts that Mr Allore was released by the Employer because he was unable to return to rus Job, and contends that thIS was confirmed In the September 19, 1996 letter to Mr Allore It argues that Mr Allore dId not voluntarily qUIt hIS employment, but was forced to leave because of hIS back InJury whIch rendered hIm unable to perform the available work. The Druon compares the sItuatlOn to one of frustratIon of contract, and subrmts that what occurred IS eqUIvalent to a release of employment. Finally, the Druon subrmts that a liberal mterpretatlOn of the word "release" should be taken, partIcularly In hght of the purpose of severance pay Counsel for the Employer acknowledges that the July 15, 1997 letter of resIgnatlOn IS condItIonal upon the receIpt of severance pay, but asserts that the real Issue IS whether the gnevor meets the cntena set forth In ArtIcle 16 07 The Employer subrmts that the gnevor does not fit wIthIn the cntena set forth m ArtIcle 16 07 for the receIpt of severance pay, SInce he dId not cease to be an employee "because of death, retIrement or release of employment. " In ItS VIew, the Employer dId not release rum, he was SImply unable to - contInue to work. 7 The Employer subrmts that the case law establIshes that the purpose of severance pay IS to "rmtIgate employer IrutIated actlOns" and to provIde mcome support dunng a penod of Joblessness, neIther of wruch IS applIcable here. It argues that severance pay does not apply to voluntary sItuatlOns created by employees and that, m trus case, there was no employer-IrutIated release from employment. Although It acknowledges that Mr Allore dId not freely leave, the Employer subrmts that he nonetheless left work due to rus mabihty to work as an ambulance attendant. In support of ItS contentlOns, the Employer cItes to Re Rothmans, Benson & Hedges Inc. and Bakery Confectionery & Tobacco Workers Union (1990), 13 LAC (4th) 254 (Charney), Re OPSEU (Bergeron) and Ministry of Health (City Ambulance Service of Quinte Ltd., GSB No 860/93 (Kaufinan, Vice-Chair) Re Mainland Engine Rebuilders Ltd and Teamsters' Union, Local 351 (1982), 5 LAC (3d) 91 (MacIntyre) and an excerpt on mterpretatlOn of a collectIve agreement from Palmer, Collective Agreement Arbitration in Canada (3d ed.)(Butterworths Toronto)(1991) The Employer also argues that what occurred was not a "retIrement" wIthm the mearung of ArtIcle 1607, smce the gnevor has not reached retIrement age and the term, standmg alone, does not mclude retIrement due to dIsabihty The Druon concedes that Mr Allore dId not retIre under ArtIcle 16 07 - 8 Decision The questlOn before tills board IS whether, under the facts outlIned above, the derual of severance pay to the gnevor, Mr Allore, vlOlates ArtIcle 16 07 That provIslOn provIdes, In pertInent part, as follows Sever~nce Pay EntItlement An employee who has completed a rmrumum of five (5) years of contInUOUS urunterrupted servIce and ceases to be an employee because of death, retIrement or release of employment shall be entItled to severance pay for contmuous servIce In the amount equal to one (1) week of the then current regular salary of the employee for each year of contInUOUS servIce up to a maXimum of twenty-sIx (26) weeks pay commencmg April 1, 1978 SInce there IS no questlOn that Mr Allore had more than five years of contmuous, urunterrupted servIce and that he IS clearly not deceased and dId not retIre, hIS entItlement to severance pay centers on whether he "cease[ d] to be an employee because of release of employment." For the folloWIng reasons, under the speCIfic facts of tills case, I conclude that the gnevor ceased to be an employee because of "release of employment" wItrun the mearung of ArtIcle 16 07 First, Mr Allore's letter of July 15, 1997 cannot be regarded as a true letter of reSIgnatIon. It was Issued at the request of the Employer, solely In order to process rus apphcatlOn for severance pay CertaInly, the letter may not then be used by the Employer to depnve the gnevor of the very benefit he sought on the grounds that he voluntarily "resIgned" - 9 Fortunately, counsel for the Employer dId not take that posItlOn, but acknowledged, as I now conclude, that the letter of resIgnatIon by Mr Allore was condItlOnal upon ills receIpt of severance pay As Mr Allore stated In ills letter' "Although my resIgnatlOn IS dated today I will not fully conSIder dIscharge to be effectIve untIl my severance pay. IS Issued to me At that tIme I will no longer be a part of the company " Consequently, Mr Allore's letter of July 15, 1997 does not constItute a vahd reSIgnatIon and so the Issue of severance pay entItlement turns on whether or not he was "release[ d] of employment" The record eVIdence shows that the gnevor mJured hIS back In January 1994 dunng the course of hIS employment and has been unable to return to work SInce May of that year He then proceeded to retram for another career under the auspIces of the WCB, as he was legally reqUIred to do Nevertheless, dunng ills retraIrung, he remaIned an employee of the Employer, WIth semonty and benefits. He successfully completed hIS retraIrung and was offered a full-tIme posItlOn WIth CDI In July 1997 At that pOInt, ills contInuIng employment relatlOnsillp WIth the Employer could legally (under both the Ontano Human Rights Code and the Workplace Safety and Insurance Act) and thus properly come to an end. His employment WIth the Employer ceased, not through any voluntary actlOn by the gnevor, but because he was unable to return to hIS posItlOn as an Ambulance Attendant or otherwIse In effect, he was, at the concluslOn of the rehabihtatlOn process, released from ills employment because he was unable to return to - hIS posItlOn. 10 The words "severance pay" are defined m Canadian Labour Terms (6th ed.) (CCH CanadIan Ltd Don Mills, 1975) at p 69, as quoted in Re OPSEU (Bergeron) and Ministry of Health (City Ambulance Service of Quinte, Ltd, supra at p 7, as follows A lump-sum payment by an employer to a worker whose employment IS permanently ended, usually for causes beyond the worker's control. In thIS case, Mr Allore's employment WIth the Employer has "permanently ended" for a cause "beyond the worker's control", speCIfically ills compensable mJury Further, the GSB has recogruzed that severance pay IS VIewed as an "earned benefit." In the Bergeron case, supra, the board stated at p 32 Severance or termmatlOn benefits serve many purposes Where the amount payable IS tIed to the number of years WIth willch an employee has been workmg for an employer, It IS reasonable to VIew the benefit as an mcentIve plan to mduce the employee to remam WIth the employer, and as an mvestment and compensatlOn for whatever sacnfice the employee has made m remammg WIth the employer As a result of the amount bemg tIed to the number of years of employment, employees VIew It as an "earned benefit." Tills Idea was more fully artIculated m Re Telegram Publishing Co and Marc Zwelling & Gottlob Essig (1972), 1 LAC (2d) 1 (Carter), quoted m Bergeron, supra at pp 9-10, where Prof Carter deterrmned that severance pay "was a deferred benefit, payable m the sItuatlOn where the employer terrmnated the employment relatlOnshIp" Further, m ills VIew, severance pay proVISIons should not be stnctly construed. As stated at p 19 - There appears to be httle JustIficatlOn for gIvmg the severance pay prOVISIon a more restncted mearung. Severance pay recogruzes than (SIC) 11 an employee does make an Investment In ills employer's bUSIness - the extent of tills Investment bemg dIrectly related to the length of the employee's servIce Upon terrmnatlOn of the employment relatlOnsillp, tills Investment of years of servIce IS lost, and the employee must start to rebuild seruonty at another place of work. The severance pay, based on length of servIce, IS some compensatlOn for tills loss of Investment. The employee will lose thIS Investment whether he IS dIsrmssed for reasons of health, or because staff IS reduced because of technologIcal InnOvatlOns, or becaus.e the bUSIness IS completely closed. In all three cases, he wIll lose ills Investment, and It seems reasonable that In all three cases he should receIve at lease partIal compensatlOn m the form of severance pay In the Instant case, the severance pay proVIsIon IS tied to years of servIce, and m Mr Allore's case, he had many years of servIce WIth the Employer - a very large "Investment" In the words of Prof Carter SInce ills employment ceased through no fault of ills own and he was, In effect, released at the end of hIS rehabihtatIon penod when he could not return to ills Job, he IS entItled to severance pay under ArtIcle 16 07 To the extent that severance pay was derued In Bergeron, supra, and the other cases cIted by the Employer, I find them dIstIngUIshable SInce each case IS determIned by the language of the collectIve agreement. The collectIve agreement language at Issue In Bergeron, supra, was very dIfferent than the language In tills collectIve agreement. Based on the language of thIS collectIve agreement and the specIfic facts of thIS case, I conclude that Mr Allore IS entItled to receIve severance pay and the derual of that pay vlOlates ArtIcle 16 07 of the collectIve agreement. Conclusion - For the reasons set forth above, I conclude as follows 12 1 The gnevance IS allowed. 2 The Employer IS dIrected to pay Mr Allore the severance pay due illm under ArtIcle 16 07 forthwIth. 3 I shall remaIn seIzed. Issued tills ~ 4- f].l day of August, 1998 - 13