HomeMy WebLinkAbout1998-0912.Witherow.00-12-04 Decision
o NTARI 0 EMPLOYES DE LA COL'RONNE
CROWN EAIPLOYEES DE L 'ONTARIO
-- GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396
GSB #0912/98
OPSEU#98C376
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano Pubhc ServIce Employees U mon
(Witherow)
Gnevor
- and -
The Crown III Right of Ontano
(Mimsm of Labour)
Employer
BEFORE Bram Herhch V Ice Chair
FOR THE Alhson Kabayama-Hun
GRIEVOR Gnevance Officer
Ontano Pubhc ServIce Employees Umon
FOR THE John SmIth
EMPLOYER Counsel, Legal ServIces Branch
Management Board Secretanat
HEARING November 21,2000
2
AWARD
The heanng before me m thIS matter proceeded on the basIs of the followmg agreed
facts
1. Mr Joseph Witherow was hIred on Apn116, 1974 and has served
as a ConstructIOn Health & Safety Officer With the Mimstry of
Labour
2. Mr Bnan Lemlfe IS the Manager, Windsor DIstnct and supervIsor
to the gnevor
3 On May 27, 1997 a dIScussIon took place between Mr Witherow
and Mr LemIre regardmg a reqUIrement that Mr Witherow use a
govemment vehIcle for the purposes of carrymg out hIS dutIes.
4. Mr Witherow responded to Mr Lemlfe S mstructIOn With a
memorandum whIch outlmed the reasons for hIS request to be
exempted from dnvmg a govemment vehIcle
5 On May 29, 1997 Mr LemIre Issued a memorandum to Mr
Witherow to confirm the expected use of the govemment vehIcle
effectIve June 16, 1997
6. Based on subsequent dIScussIon(s) between Mr Witherow and Mr
LemIre, Mr Witherow understood that If he gave notIce of hIS
mtent to retIre, he would be permItted to dnve hIS own vehIcle
7 Mr Witherow submItted a letter dated July 16, 1997 of hIS mtent
to retIre effectIve January 30, 1998 Mr Witherow S actual last
day at work would be November 14, 1997 due to the use of
accumulated vacatIOn credIts
8. On October 30, 1997 Mr Witherow suffered a workplace mJury
and receIved medIcal treatment by a WCB phYSICian.
9 Mr Witherow had obtamed approval from hIS treatmg phYSICIan to
retum to work effectIve February 2, 1998 The medIcal certIficate
speCIfied "Ideally modIfied work l.e sedentary work"
10 Mr Witherow rescmded hIS mtent to retIre by letter dated January
13, 1998
3
11 On January 28, 1998 Mr Witherow receIved a letter dated January
27, 1998 from Mr LemIre declmmg hIS request to have hIS
resIgnatIOn notIce rescmded. Mr Witherow was adVIsed to ensure
that all retIrement paper work was completed With DIane KnIght.
12. On February 2, 1998 Mr Witherow met With DIane KnIght to SIgn
hIS penSIOn paperwork. Mr Witherow felt compelled to do so
smce he was not receIvmg any payor WCB benefits at that tIme
13 In March 1998 Mr Witherow receIved a letter from WCB
mformmg hIm that hIS claim had been approved for the penod
October 30 to November 9, 1997, only
14 Mr Witherow receIved a pay cheque dated February 5, 1998 m the
net amount of $491 28
15 Mr Witherow dId not receIve any further pay cheques subsequent
to February 5, 1998
16 On Apnl 10, 1998, Mr Witherow sent a memorandum to Mr
LemIre advIsmg that he Wished to have hIS pay supplemented by
the vacatIOn credIts lost dunng hIS penod of absence due to the
work related mJury Mr Witherow requested that those credIts be
used to supplement hIS WCB pay and that he be paId the remammg
275 vacatIOn credIts m full.
17 On Apnl 27, 1998, a gnevance was filed by Mr Witherow
essentially allegmg that the employer unreasonably demed hIS
request to rescmd hIS letter of mtent to retIre, thereby denymg hIm
contmued benefits, the use of hIS vacatIOn credIts, and the
Improper deductIOn of such vacatIOn credIts from hIS last pay
cheque Mr Witherow sought remstatement to hIS former pOSItIOn
retroactIve to January 30, 1998 and reImbursement for all loss of
salary, benefits and vacatIOn credIts plus mterest.
18. A Stage 2 meetmg was held on October 5, 1998 Mr Witherow
and hIS unIon representatIve, Elame EllIs, argued that Mr
Witherow had been dIsmIssed Without cause and SectIOn 19 of the
PublIc ServIce Act was relIed upon. It was noted that Mr
Witherow s pOSItIOn had not been filled at the tIme that he sought
to rescmd hIS reSIgnatIOn.
19 The Stage 2 response was Issued on October 26, 1998, denymg Mr
Witherow s gnevance and statmg that the Employer determmed
that Mr Witherow retIred voluntanly and had not been dIsmIssed
from hIS employment.
4
20 Mr Witherow S gnevance was scheduled for a mediatIOn process
September 13-15, 1999 However, prelImmary dIScussIons
revealed that no offer of settlement would be extended and the
gnevance was not resolved.
Pnor to and durmg the course of theIr legal argument (no oral eVIdence was
called), the partIes supplemented and clanfied the above facts.
FIrst of all and despIte the references m paragraph 6 of the above facts, It was
acknowledged that the gnevor S deCISIon to tender hIS reSIgnatIOn had been entIrely
voluntary SImIlarly, the events of February 2, 1998 (see paragraph 12 of the Facts) are
pomted to m order to demonstrate that, even at that late date, the gnevor S contmumg
mtentIOn and deSIre was to rescmd hIS reSIgnatIOn. It IS not, however, claimed that the
gnevor dId not tender a legally bmdmg reSIgnatIOn-It IS acknowledged that he dId. The
Issue IS whether he ought to have been permItted to rescmd that reSIgnatIOn. Fmally, It
was not dIsputed that the deCISIon to deny the gnevor S request to rescmd hIS reSIgnatIOn
(see paragraph 11 of the Facts) was one made With the proper delegated authonty of the
Deputy Mimster
The deCISIon of thIS Board m Rao (1542/85, 1543/85, 1544/85- Vice-Chalfperson
FIsher) conSIdered and rejected a SImIlar claim. In that case the gnevor sought to rescmd
the reSIgnatIOn she had tendered less than a week earlIer The deCISIon tums on the
proVIsIon of sectIOn 19 of the Public Service Act It currently reads as follows (changes
to the verSIOn conSIdered m the Rao case are not matenal for our purposes)
19 A person may reSIgn from the publIc servIce by gIvmg hIS or her
deputy mmIster two weeks notIce m wrItmg of the mtentIOn to reSIgn, but
he or she may, by an appropnate notIce m wntmg and With the approval of
hIS or her deputy 1ll1mster, Withdraw the notIce at any tIme before ItS
effectIve date If no person has been appomted or selected for appomtment
to the pOSItIOn that Will become vacant by reason of the reSIgnatIOn.
[emphasIs added]
5
In the Rao case, as m the present one, all of the reqUIrements of sectIOn 19 appear
to have been met except for the grantmg of approval by the Deputy MinIster The
employer m the Rao case asserted that, absent any relevant prOVIsIon of the collectIve
agreement or the Crown Employees Collective Bargaining Act, the Gnevance
Settlement Board had no authonty to reVIew the deCISIon of the Deputy Mimster to
Withhold approval of the reSCISSIon of the reSIgnatIOn.
The unIon argued (agam, m Rao) that sectIOn 19 effectIvely makes all
reSIgnatIOns condItIOnal on not bemg revoked pnor to the effectIve date It relIed as well
on ItS assertIOn that an earlIer deCISIon de almg With the matter had not found that the
gnevor had submItted a legally bmdmg reSIgnatIOn to argue that the case therefore
amounted to a dIsmIssal whIch could be the subject of a gnevance
In dIsmIssmg the unIOn S claim the Board concluded that there IS, m effect, lIttle
dIfference between the sectIOn 19 procedure and that whIch would obtam m the pnvate
(unIOnIzed or non-unIOnIzed) sector The deCISIon as to whether or not to accept a
Withdrawal of a reSIgnatIOn was described as "stnctly a Management functIOn, not open
to arbItral reVIew unless the CollectIve Agreement clearly prOVIdes for It"
WhIle there are some dIfferences between thIS case and the facts conSIdered m
Rao, none of them pomts to a dIfferent result. The managements nghts and the Just cause
prOVISIOns are now found m the collectIve agreement-at the tIme of the Rao deCISIon
they were found m the Crown Employees Collective Bargaining Act. However, there IS
nothmg m those prOVISIons, as they eXIsted eIther then or currently whIch applIes to the
facts at hand. The unIon acknowledges that the gnevor voluntanly submItted a legally
bmdmg reSIgnatIOn - thus the somewhat artIfiCial construct of charactenzatIOn as a
dIsmIssal IS not even aVailable m thIS case (an approach whIch, m any event, faIled to
Impress the Board m the Rao case) Finally, the unIon concedes that that there IS no
proVISIon m the collectIve agreement whIch It can claim has been VIolated m thIS case
6
WhIle the gnevor S dIsappomtment at the employer S refusal to grant a request
whIch It mIght have been m a posItIOn to accommodate IS not dIfficult to comprehend, m
the absence of any claimed VIOlatIOn of the collectIve agreement or any other source of
mandated JunsdIctIOn, thIS Board IS unable, to us e the words of the Rao decIsIon, to
"SImply correct perceIved mJustIces"
We were provIded With no legal baSIS to depart from the Board S analYSIS m Rao
and therefore declIne to do so
The gnevance IS dIsmIssed.
Dated at Toronto, thIS 4th day of December, 2000
- ~
. I - ~--~_.
- ~~ -~.
Bram HerlIch, Vice-Chair