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HomeMy WebLinkAbout2001-0929.Pereira.05-08-22 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2001-0929 UNION# 2001-0213-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (PereIra) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty and SocIal ServIces) Employer BEFORE D.J.D LeIghton Vice-Chair FOR THE UNION Richard Blair Ryder Wnght Blair & Holmes LLP Barnsters and SOlICItorS FOR THE EMPLOYER MeredIth Brown Counsel Management Board Secretanat HEARING June 6 2005 2 DeCISIon INTRODUCTION The Issue In thIS case IS whether a person who has receIved benefits under AppendIx 18 and has eXIted the Ontano PublIc ServIce (OPS) must make repayments under artIcle 20 when returmng to an unclassIfied posItIOn. The umon takes the posItIOn that artIcle 20 only applIes to classIfied employees The employer's posItIOn IS that It artIcle 20 applIes to a classIfied employee who IS surplused, and returns to a posItIOn In the OPS The gnevor Mr Hernam PereIra, was part of a group of gnevances (GSB 0047/2000 et aT) filed by employees of Syl Apps after the InstItutIOn was dIvested to KInark In December 2000 The board has Issued a number of decIsIOns In thIS matter In a decIsIOn rendered on March 21 2003 the board noted that the umon reserved a nght to make further specIfic submISSIOns regardIng the gnevor On June 6 2005 the umon exercIsed that nght and a heanng Into thIS matter proceeded by way of an agreed statement of facts and oral argument. Agreed Statement of Facts 1 The Gnevor was employed as a Youth Worker at the Syl Apps Youth FacIlIty wIth the Mimstry of Commumty and SocIal ServIces He commenced employment In 1983 2 Syl Apps was dIvested to KInark as of December 1 2000 3 Pnor to the dIvestment, employees were gIven the chOIce to "opt In" or "opt out" of the RFP 4 The Gnevor opted out and left the OPS on November 30 2000 By optIng out, he elected to receIve severance payments under AppendIx 18 of the CollectIve 3 Agreement. 5 On March 5 2001 the Gnevor took an unclassIfied posItIOn In the ProbatIOn and Parole Office wIth the Mimstry of Commumty Safety and CorrectIOnal ServIces At the tIme he took the posItIOn, he had not yet receIved hIS severance payments 6 The amount the Gnevor ultImately receIved was reduced by the amount that he was reqUIred to repay pursuant to artIcle 20 2 5 Total of Enhanced Severance, LegIslated Severance and Pay In LIeu = $48683 35 LegIslated Severance = $13 13400 (paid to the Gnevor) Pay In LIeu for December 1 2000 - March 4 2001 = $11 55792 (paid to Gnevor) [RemaInder at Issue = $23 991 43 + Interest] 7 The Gnevor contInues to work In an unclassIfied posItIOn at the ProbatIOn and Parole Office The cOmbInatIOn of unclassIfied posItIOns he has held SInce March 5 2001 has not yet gIven nse to converSIOn under the CollectIve Agreements SUBMISSION OF THE PARTIES The umon takes the posItIOn that when the gnevor opted out and left the OPS on November 30 2000 he was entItled to receIve severance payments pursuant to AppendIx 18 of the collectIve agreement. Because, at the tIme, lItIgatIOn In thIS matter was pendIng, the gnevor dId not receIve the enhanced payments When the gnevor returned to the OPS to an unclassIfied posItIOn, the employer offset the payments pursuant to artIcle 20 2 5 It IS the umon's posItIOn that because the gnevor returned to an unclassIfied posItIOn there IS no repayment oblIgatIOn under artIcle 20 Counsel for the umon, Richard Blair argued that unclassIfied employees are not cIvIl servants, and artIcle 31 sets out the provIsIOns of the collectIve agreement that apply to them It does not Include artIcle 20 An employee gOIng back Into a classIfied posItIOn must pay the money back 4 pursuant to artIcle 20.2 4 or 20 2 5 However SInce artIcle 20 does not apply to the unclassIfied, the gnevor ought not to have had the enhanced severance wIthheld by the employer Mr Blair also noted that AppendIx 18 gIves certaIn specIfic eXIt nghts, but that nothIng stops a person from applYIng In an open competItIOn for a new Job In the OPS He argued further that I could not amend the collectIve agreement by applYIng artIcle 20 to an unclassIfied person when It IS not desIgnated as applYIng to someone In the unclassIfied servIce ArtIcle 20 reqUIres classIfied employees to pay theIr enhanced severance back when they return to the OPS but then they get theIr contInuous servIce credIted back to them Counsel referred me to an earlIer decIsIOn In thIS matter whIch In hIS submIssIOn recogmzes thIS balance of fairness OPSEU (Union Grievance) and Ministry of Community and Social Services (2001) GSB 0047/00 (LeIghton) Counsel argued further that OPSEU (Union Grievance) and Management Board Secretariat (1996) GSB 459/96 (Bnggs) IS dIstIngUIshable or mamfestly wrong and therefore should not be followed. Counsel for the employer MeredIth Brown, argued that the gnevor IS not entItled to the full enhanced severance payment under AppendIx 18 SInce he returned to aJob In the OPS Counsel argued that the board's March 16 2001 decIsIOn In thIS matter decIded the Issue that anybody returmng to a posItIOn In the OPS had to repay enhanced severance pursuant to artIcle 20 She argued further that the Bnggs decIsIOn, supra, addressed the very argument put forward by the umon In thIS case and decIded the Issue The umon In that case argued that the words "In a posItIOn" could only mean a classIfied posItIOn. The board In that case decIded that artIcles 24 2 4 and 24 2 5 (now artIcles 20 2 4 and 20.2 5) dId apply to a person returmng to an unclassIfied posItIOn and, therefore, that person had to return the enhanced severance 5 In Ms Brown's submIssIOn, the board accepted the arguments of the employer that the purpose of requmng employees to pay back enhanced severance was to aVOId "double dIppIng." Further the reqUIrement to pay back momes paid under the artIcle was Intended as a dISInCentIve for employees to return to the OPS FInally counsel for the employer here argued that the reqUIrement to pay back enhanced momes was not sImply to restore a contInuous servIce of an employee, but was also to prevent an employee beIng paid severance at the same tIme as earmng a salary from the OPS DECSION The Issue before me IS whether the employer pursuant to artIcle 20.2 5 properly wIthheld the gnevor's pay In lIeu of notIce and certaIn payments made pursuant to AppendIx 18 when he returned to an unclassIfied posItIOn In the OPS AppendIx 18 makes the folloWIng provIsIOn for those employees who decIde to eXIt the OPS 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 (iI) termInatIOn payments In accordance wIth ArtIcle 53 or 78 6 Upon receIpt of surplus notIce, employees who elected 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 ArtIcle 20 2 4 provIdes as follows Where an employee accepts pay In lIeu of notIce and IS re-appoInted to a posItIOn In the Ontano PublIc ServIce pnor to the ongInally proJected lay-off date, the employee wIll repay to the mImstry a sum of money equal to the amount paid for the penod between the date of re-appoIntment and the ongInal proJected lay-off date In addItIOn, the employee wIll repay to the mImstry all momes, excludIng tUItIOn fees, receIved under ArtIcle 20 3 (SeparatIOn Allowance) or paragraph 4 of AppendIx 9 (Employment StabIlIty) The employee's contInUOUS servIce date for all purposes except ArtIcle 53 or 78 (TermInatIOn Payments) shall be deemed to Include both servIce up to the last day of actIve work and the accumulatIOn of servIce after the date of re-appoIntment. The new servIce date for purposes of termInatIOn pay shall be the date on whIch the employee recommences work. ArtIcle 20 2 5 provIdes as follows Where an employee who accepts pay In lIeu of notIce IS re-appoInted to a posItIOn In the Ontano PublIc ServIce after the ongInal proJected lay-off date, and pnor to the expIratIOn of a further twenty-four (24) months, the employee wIll repay to the mImstry all momes, excludIng tUItIOn fees, receIved under ArtIcle 20 3 (SeparatIOn Allowance) or paragraph 4 of AppendIx 9 (Employment StabIlIty) The employee's contInUOUS servIce date for all purposes except ArtIcle 53 or 78 (termInatIOn Payments) shall be deemed to Include both servIce up to the last day of actIve work and the accumulatIOn of servIce after the date of re-appoIntment. The new servIce date for purposes of termInatIOn pay shall be the date on whIch the employee recommences work. ArtIcles 20.2 4 and 20.2 5 of the collectIve agreement have been Interpreted In OPSEU (Union Grievance) supra decIded by Vice-chair Bnggs In 1996 The umon argued before Vice-chair Bnggs that the words "posItIOn In the Ontano PublIc ServIce" found In artIcles 24.2 4 and 24.2 5 (now 2024 and 2025) dId not refer to an unclassIfied posItIOn. Vice-chair Bnggs decIded that they dId. The reasons were clear ApplYIng the first pnncIple of contract InterpretatIOn, that 7 words should be gIven theIr plaIn meamng, she concluded that she could not read out the words "In the Ontano PublIc ServIce" whIch qualIfy the words "a posItIOn." WhIle the language was not as clear as mIght be lIked, Vice-chair Bnggs held that the partIes must have Intended somethIng by IncludIng the broad qualIfier "In the Ontano PublIc ServIce" SInce the Public Service Act, RS 0 1990 c.P 47 (as amended) defines the OPS as IncludIng the unclassIfied servIce Vice-Chair Bnggs decIded that the partIes Intended to reqUIre anyone returmng to an unclassIfied posItIOn to pay back momes as reqUIred under the artIcle Further Vice-chair Bnggs accepted the employer's submIssIOn that the purpose of artIcles 24.2 4 and 24.2 5 was to provIde a dISInCentIve to employees returmng to the OPS Mr Blair argued that I should not follow the Bnggs decIsIOn for several reasons He noted that her decIsIOn was rendered before AppendIx 18 the successor to AppendIx 9 AppendIx 18 was amended to specIfically contInue only nghts under artIcles 20 15 and 20 19 Thus, he argued AppendIx 18 restored a balance between returned severance and credIted semonty Alternately counsel argued that Vice-chair Bngg' s decIsIOn was wrong In not recogmZIng the balance of fairness for classIfied employees returnIng severance and gettIng contInUOUS servIce restored, somethIng that an employee returnIng to an unclassIfied posItIOn does not get. I am not persuaded by these arguments If the partIes had Intended to renegotIate the effect of Vice-chair Bngg's decIsIOn, all they needed to do was amend what IS now artIcles 20.2 4 and 20 2 5 by remOVIng the words "posItIOn In the Ontano PublIc ServIce" and replacIng It WIth "a classIfied posItIOn." ThIS they have not done Further I am not convInced that the changes to AppendIx 18 achIeve what counsel urges me to find. AppendIx 18 IS clear that eXItIng employees "wIll have no other nghts under ArtIcle 20 except 20 15 and 20 9" However artIcles 20 2 4 and 20 2 5 are not nghts, they are oblIgatIOns SectIOn 5 2 of AppendIx 18 8 provIdes that eXItIng classIfied employees receIve pay In lIeu of notIce under artIcle 20.2 and whatever IS greater of a separatIOn allowance under artIcle 203 or enhanced severance In accord wIth paragraph 4 of AppendIx 9 If a classIfied person eXIts, he or she receIves pay In lIeu, and other payments pursuant to artIcle 20 the oblIgatIOn to pay back these momes survIves untIl the two years after the proJected lay-off date whether the person returns to the unclassIfied or classIfied servIce It helps to keep In mInd the purpose of artIcle 20 2, whIch IS to gIve classIfied employees certaIn severance payments If they are lOSIng theIr Jobs But the partIes also bargaIned that If a classIfied person receIved momes under thIS artIcle and returned before the lay-off date, or wIthIn a further two years after the lay-off date, then that classIfied person - no matter what posItIOn he or she came back to would be reqUIred to pay back momes as specIfically provIded In artIcles 20 2 4 and 20.2 5 In addItIOn the employee returmng to a classIfied posItIOn gets hIS or her prevIOUS servIce Included for the purpose of a contInUOUS servIce date A person returmng to an unclassIfied posItIOn may ultImately also benefit from thIS provIsIOn, If he or she secures a classIfied posItIOn. In conclusIOn, I am satIsfied that changes to AppendIx 18 do not alter the result found In Vice- chair Bngg's decIsIOn. Further It IS the well- establIshed practIce of thIS board to follow ItS prevIOus decISIOns, unless they are mamfestly wrong. I am convInced that Vice-chair Bngg's decIsIOn IS correct and Interprets the language In the manner Intended by the partIes 9 For the reasons outlIned above, Mr PereIra's claim for momes wIthheld by the employer when he returned to an unclassIfied posItIon, IS hereby demed. Dated at Toronto thIS 22nd day of August, 2005