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HomeMy WebLinkAbout2000-0447.Union.01-03-16 Decision o NTARl 0 EMPLOYES DE LA COL'RONNE CROWN EMPLOYEES DE L "ONTARIO GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB #0447/00 1042/00 OPSEU#OOU072, 00U130 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Umon Gnevance) Gnevor - and - The Crown III RIght of Ontano (Mimstn of Commum~ and SocIal ServIces) Employer BEFORE D J D LeIghton Vice Chair FOR THE RIchard Blair Counsel GRIEVOR Ryder Wnght, Blair & Doyle Barnsters and Sohcltors FOR THE Len Mam Semor Counsel EMPLOYER John SmIth, Semor Counsel Legal ServIces Branch Management Board SecretarIat HEARING Februan 27 2001 DecIsIOn On November 16, 2000 the Board was asked to Interpret sectIOn 52 of AppendIx 18 of the collectIve agreement between the partIes On February 27, 2001 the partIes asked for a further InterpretatIOn. SectIOn 5 governs transfers of bargaInIng umt Jobs through the tendenng process or the Request for Proposal (RFP) SectIOn 5 2 provIdes Employees who elect not to be Included In the RFP wIll be declared surplus The date of the surplus notIce wIll be determIned by the employer Upon receIpt of the surplus notIce, the affected employee wIll eXIt the OPS Immediately, these employees wIll receIve only the benefits set out below' (I) pay In lIeu of notIce In accordance wIth ArtIcle 20 2 and a) the greater of separatIOn allowance In accordance wIth ArtIcle 20 3 or b) enhanced severance In accordance wIth paragraph 4 of AppendIX 9 and 11) termInatIOn payments In accordance wIth ArtIcle 53 or 78 Upon receIpt of surplus notIce, employees who elect not to be Included In the RFP wIll not be entItled to any other benefits or nghts under the collectIve agreement or thIS agreement, effectIve the date they eXIt the OPS NotwIthstandIng the generalIty of the foregoIng, upon receIpt of surplus notIce, these employees wIll have no other nghts under ArtIcle 20, except for ArtIcle 20 15 and ArtIcle 20 19 Employees electIng In advance to not be Included In the RFP wIll also receIve a sum equal to $500 00 for the purpose of obtaInIng resume wntIng and career tranSItIOn servIces 2 The partIes explIcItly lImIted the entItlements of ArtIcle 20 to the payments noted In sectIOn 521) pay In lIeu of notIce and the greater of a) separatIOn allowances In accordance wIth ArtIcle 203 or b) enhanced severance In accordance wIth paragraph 4 of AppendIx 9 and 11) termInatIOn payments In accordance wIth ArtIcle 53 or 78 SectIOn 52 explIcItly provIdes that upon electIng not to be Included In the RFP, employees wIll be declared surplus and they wIll eXIt the OPS Immediately ThIS IS In contrast to the entItlement of the employee surplused under ArtIcle 20 outsIde the reasonable efforts provIsIOns These employees have optIOns when they are surplused. For example, and employee IdentIfied as surplus under ArtIcle 20 1 IS entItled to SIX months notIce of lay- off or wIth the consent of the employer may resIgn and receIve the eqUIvalent pay In lIeu of notIce ThIS entItlement was explIcItly removed In sectIOn 5 2 of AppendIx 18 by the reqUIrement that employees who refuse to be part of the RFP must eXIt Immediately They get no choIce The language of sectIOn 5 2 provIdes that except for the payments lIsted In the sectIOn, the eXItIng employee has no other benefits or rIghts under the collectIve agreement It states more specIfically that there wIll be no other nghts under ArtIcle 20 "except for ArtIcle 20 15 and ArtIcle 20 19 " GIven thIS language the decIsIOn of the Board on December 6 was that employees were not entItled to apply for restncted competItIOns for 24 months from the date of lay- off LIkewIse the eXItIng employee has no dIsplacement rIghts, re-deployement, recall or other ArtIcle 20 nghts, that would assIst 3 the IndIVIdual In secunng another posItIOn In the OPS It was the UnIon's posItIOn and the Board agreed that pursuant to the language of sectIOn 52, the employee who reJects the RFP would eXIt, and would get no assIstance to remaIn In the OPS The questIOn before the Board now IS whether employees, who have eXIted under sectIOn 52 and been paid surplus entItlements, upon returnIng to a Job In the OPS, must repay these mOnIes pursuant to ArtIcles 20 2 4 or 20 2 5 The UnIon takes the posItIOn that these artIcles confer a benefit - allowIng the employee In effect to "purchase back" theIr senIonty Further, It IS submItted that SInce the Board has held that only the benefits as specIfically outlIned In sectIOn 52 apply, then ArtIcles 20 2 4 and 20 2 5 do not reqUIre an employee, surplused under sectIOn 5 2 to pay back surplus entItlements If they are able to secure a new posItIOn In the OPS The Umon submIts that It would not be fair to reqUIre employees who return to the OPS to pay severance back but not get theIr semonty The Employer takes the posItIOn that ArtIcles 20 2 4 and 20 2 5 are not benefits but oblIgatIOns to an employee who was paid surplus entItlements to repay accordIng to the reqUIrements of ArtIcles 20 2 4 and 20 2 5 Currently, any employee who secures a posItIOn after beIng surplused outsIde of AppendIx 18, even a posItIOn that was not restncted, must pay back surplus entItlements In the Employer's submIssIOn the proVISIO ns are at least neutral - In that the employees are oblIged to pay but then they 4 receIve theIr semonty The Employer dId not take the posItIOn that employees were reqUIred to pay back surplus entItlements but were not entItled to semonty HavIng carefully consIdered the above submIssIOns, I rendered a decIsIOn on March 5, 2001 that declared any employee surplused under sectIOn 52 who subsequently secures a Job In the OPS must comply wIth ArtIcles 20.2 4 or 20.2 5 as may be applIcable WhIle It IS clear that the partIes Intended to remove all ArtIcle 20 assIstance to employees eXItIng under AppendIx 18, there IS nothIng that prevents the surplused employee from competIng for an open posItIOn In the OPS If they are successful and come back to work for the Government ArtIcle 20, and Indeed, all of the rest of the collectIve agreement, then applIes to them. Under ArtIcle 20 employees are oblIgated to repay momes under ArtIcles 20 2 4 and ArtIcles 20 2 5 Upon paYIng these momes theIr contInuous serVIce date IS recalculated accordIng to these provIsIOns Date at Toronto, thIS 16th day of March, 2001 Deborah J.D LeIghton, VIce-ChaIr 5