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HomeMy WebLinkAbout2002-2502.Garrow.04-12-07 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# 2002-2502, 2002-3196 UNION# 2003-0736-0001 2003-0736-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Garrow) Grievor - and - The Crown In RIght of Ontano (Mimstry of Consumer and BusIness ServIces) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Jim GIlbert Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Yasmeena Mohamed Semor Counsel Management Board Secretanat HEARING July 11 2003 January 7 June 4 & 22, July 20 August 11 2004 2 DeCISIon The gnevor began workIng for the Northwest RegIOnal Centre In 1980 and, In 1991 when It was closed, was assIgned to the Office of the RegIstrar General as an OAG 8 untIl her termInatIOn In 2003 ThIS award deals wIth the prelImInary questIOn of whether the gnevor could retIre dunng the InVestIgatIOn Into the CIrcumstances of her termInatIOn and contInue to be elIgIble for the retmng allowances under the collectIve agreement. Put another way can the Employer refuse to accept her request for retIrement and, If so under what condItIOns The Umon took the posItIOn that there IS no lImItatIOn on an IndIVIdual's nght to retIre In eIther the collectIve agreement or the Public Service Act and the Employer cannot refuse to accept a request for retIrement. In the alternatIve, even If the Employer IS nght and the Public Service Act does reqUIre notIce the notIce of termInatIOn was receIved after the two week notIce penod In the Act and IS therefore InvalId. The Employer took the posItIOn that there IS no dIfference between a resIgnatIOn and a retIrement and the GSB case law has determIned that a Vice-Chair has no JunsdIctIOn over resIgnatIOns under the Act. As well, the Employer retaInS a dIscretIOnary power under the common law to reJect a resIgnatIOn, whIch does not gIve nse to a vIOlatIOn of the collectIve agreement. If thIS Board does decIded It has JunsdIctIOn over thIS matter that JunsdIctIOn would be lImIted to a findIng of whether the Employer exercIsed ItS dIscretIOn unreasonably or In bad faith SectIOn 19 of the Public Service Act reads as follows A person ma, resIgn from the publIc servIce b, gIvmg hIS or her depun mmIster twp weeks notIce m wntmg of the mtentIOn to resIgn, but he or she ma, b, an appropnate notIce m wntmg and WIth the approval of hIS or her deput, mmIster wIthdraw the notIce at an, tIme before tIS effectIve date If no person had been appomted or selected for appomtment to the posItIOn that wIll become vacant b, reason of the reSIgnatIOn. The facts gIVIng nse to thIS prelImInary Issue are as follows the gnevor was removed from the workplace on December 20 2002 and charged WIth theft of Mimstry documents, among other thIngs She appeared In court the next day and was released on condItIOn that she appear for her court date on February 7 2003 that she keep the peace, that she stay away from the workplace that she adVIse the polIce WIthIn 24 hours of any change In address and that she report to the polIce statIOn every Tuesday between 0800 and 2000 hours 3 The gnevor was sent a letter dated December 10 2002 to her address on file, that IS 184 Court Street South, Apartment 2, whIch stated as follows ThIS letter IS to Inform you that pursuant to SectIOn 22 (1) of the Public Service Act you are suspended from duty pendIng an InVestIgatIOn. ThIS suspensIOn IS WIth pay and IS effectIve ImmedIately You wIll be contacted by mall wIth further InstructIOns wIthIn 20 workIng days If you have any questIOns on thIS matter please contact Kelly McDevItt, AssIstant Deputy RegIstrar General (A) at 807-343-7557 JUdI Hartmen DIrector/Deputy RegIstrar General The letter Itself states that It was delIvered by regIstered mall but Ms Smder the Umon Steward, was told by Mr Graham Clark, that the letter was beIng delIvered by the Shenff to the address shown. In fact, the letter was hand delIvered to the gnevor by someone who IdentIfied hImself as the Shenff on December 12, 2002 at the gnever' s new address of 216 Bay Street, Apartment 1 where she had been resIdIng SInce August of 2002 By letter dated December 24 2002, the gnevor was advIsed that new InformatIOn had resulted In a decIsIOn to convert her suspenSIOn wIth pay to a suspensIOn wIthout pay pursuant to SectIOn 22( 1) of the Public Service Act. The gnevor receIved a card In the mall adVISIng her that a parcel had been receIved for her at the Post Office In Shopper's Drug Mart. She was unsure of the date of the notIce but recalled collectIng the letter the next day and callIng Ms Smder ImmedIately She was concerned about the lack of revenue SInce her rent was already past due and she had no other source of Income She had been told she was InelIgIble for EI and that there would be a three month Wait for welfare benefits In fact, she had receIved an eVIctIOn notIce from the Shenff's office and had moved on February 6 2003 to 220 Bay Street, Apartment 4 She and a fnend managed to move all of her belongIngs In Just a few hours In the meantIme, the gnevor had receIved another letter by regIstered mall adVISIng her that her 20 day suspenSIOn wIthout pay was beIng extended for another 20 days, untIl February 17 2003 The letter was addressed to her old address of 216 Bay Street but she receIved the mall at her Post Office box at Shopper's Drug Mart. At the tIme she was stIll reportIng to the polIce statIOn 4 every Tuesday and a fnend had been dnvIng her to that appoIntment and to the post office at the same tIme Because of concerns about her finances, she wrote a letter dated January 29 2003 whIch stated as follows Please consIder thIS letter my officIal notIficatIOn to retIre from my posItIOn at the Office of the RegIstrar General effectIve ImmedIately Please forward the appropnate papers She knew she could retIre at full penSIOn wIthout financIal penalty and decIded she had no alternatIve She described herself as beIng bereft of funds Ms Smder helped her to draft the letter and the gnevor asked her to delIver It to the Employer SInce she was unable to attend at the premIses herself She stIll consIdered herself suspended from duty and belIeved that suspenSIOn would contInue untIl the cnmInal proceedIngs had concluded. She was surpnsed then to receIve the letter of dIsmIssal dated February 4 2003 In whIch she was advIsed that the Employer had reJected her request for retIrement and that, effectIve ImmedIately she was dIsmIssed from employment. At the tIme the gnevor was reCeIVIng her mall at her post office box at Shopper's Drug Mart and, because, she had no transportatIOn, would only pIck It up once a week on Tuesday after her VISIt to the polIce statIOn. Her eVIdence was that she would have pIcked up thIS letter on eIther February 18th or 25th on one of her regular pIck-ups The return address on the envelope was the Toronto office of the Mimstry and the date stamp from the post office was 03/02/11 In cross-eXamInatIOn she explaIned that she had moved In August of 2000 from 184 Bay Street to 216 Bay Street and before that she had lIved on Cumberland Avenue She could not recall whether she had Informed the Employer of these moves She also stated that In November of 2002 she had rented a post office box because she was havIng trouble wIth her mall delIvery Some of the mall she had been expectIng was never delIvered and she suspected It was because of her landlord, who was responsIble for sortIng the mall at her apartment. She was unable to recall whether she had advIsed Ms Smder of her change of address on February 6th or whether she had Informed her of her post office box number at Shopper's She was very vague about when, If ever she told the Employer or the Umon about her move to 220 Bay Street or her rental box at Shopper's or many other detaIls of the events that occurred at the tIme She dId not recall 5 any commumcatIOn wIth Purolator but explaIned that her apartment was In a bUIldIng that contaIned a small electncal shop on the maIn floor In order to leave a notIce the delIverer would have to ask for entry to the apartments above Only people lIvIng In the apartments have access to them. If the owner of the shop was absent, there would be no one to accept a letter The tenants In the apartments above would not be aware of any delIvery except through the shop below Ms Smder IS employed by the Office of the RegIstrar General In the same classIficatIOn as the gnevor She has known the gnevor SInce they were employed by the Northwest RegIOnal Centre In 1993 She has also been an actIve Umon member for several years and was the Umon Steward dunng the events gIVIng nse to thIS gnevance She was aware that the gnevor had been escorted from the bUIldIng on December 10th and that she had been suspended wIth pay pendIng InVestIgatIOn. She receIved a phone call from the gnevor between Chnstmas and New Year's adVISIng her that the suspenSIOn was now wIthout pay On January 3 2003 she filed a gnevance on the gnever's behalf and requested dIsclosure of the facts leadIng to the suspenSIOn. A gnevance meetIng was scheduled for January 30th but In the Interval the gnever's suspenSIOn wIthout pay was extended for another 20 days Dunng thIS tIme the gnevor and Ms Smder spoke frequently The gnevor was In senous financIal dIfficulty and needed money to purchase prescnptIOn medIcatIOn. Ms Smder advIsed her to seek welfare or EI benefits, and dunng these dIscussIOns, her elIgIbIlIty for penSIOn benefits was raised. She was afraid she was gOIng to be eVIcted from her apartment and had an ongOIng need for medIcatIOn Ms Smder wrote the letter seekIng retIrement and met wIth the gnevor over lunch to have her sIgn It. Ms Smder then handed the letter to Ms McDevItt, the ActIng Deputy RegIstrar General, who accepted It wIthout comment. Ms Smder helped the gnevor complete the necessary applIcatIOn forms for the penSIOn and, when she had some dIfficulty asked Ms McDevItt for her assIstance On February 5 2003 she sent an e-maIl askIng Ms McDevItt whether the forms had been submItted and receIved a reply that same day IndIcatIng they had been "sent on" Ms Smder was not aware that the gnevor had been termInated or that her applIcatIOn for retIrement had been reJected untIl Ms PIlley the OPSEU Staff RepresentatIve, told her they had receIved a copy of a letter at the OPSEU office on February 13 2003 adVISIng the gnevor of her dIsmIssal A gnevance meetIng was scheduled for February 26th but Ms Smder entered the wrong date In her calendar and, as a result, the gnevor was not present for the conference call 6 Ms Snyder had advIsed Mr Paul Moore, Manage of Human Resources, bye-mall, about the gnevor's new address and post office box number on February 10 In response the next day Mr Moore advIsed Ms Smder that a letter had been sent to the gnevor's old address but that another would be sent to the new address Ms Smder advIsed Mr Moore bye-mall the next day that IS February 12, that the gnevor had been staYIng wIth a fnend and that she would be more lIkely to receIve mall at her post office box. She was not told the contents of the letter Ms Jan PIlley has been employed by the Umon as a Staff RepresentatIve SInce Apnl of 1993 Her dutIes Include representIng members at gnevance meetIngs and adVISIng them of theIr nghts and oblIgatIOns under the collectIve agreement. She also acts as a resource for local umon stewards on labour relatIOns matters She was present for the January 30th Stage 2 gnevance meetIng regardIng the gnever's suspenSIOn. Ms PIlley understood that the purpose of the meetIng was to allow the gnevor an opportumty to explaIn her verSIOn of the events However on the advIce of her legal counsel on the cnmInal matters, she dId not attend the meetIng. Dunng the meetIng the Umon was advIsed by Mr Moore that he was stIll InVestIgatIng the matter and could not respond at that tIme Ms PIlley advIsed hIm that, as far as the Umon was concerned, the matter was moot SInce the gnevor had retIred from the publIc servIce There was no response to that comment. The meetIng ended on that note and Ms PIlley's next Involvement In the case arose on February 13th when she receIved a copy of the termInatIOn letter at the OPSEU office The letter was dated February 4 but was date stamped as receIved on February 13 2003 She was leaVIng the next day for Niagara Falls and decIded to file the gnevance on behalf of the gnevor to ensure her nghts were protected. She dId not see the need to speak to the gnevor before filIng the gnevance because, If the gnevor dId not want to proceed, they could wIthdraw the gnevance at a later date The first tIme she became aware that the Employer had reJected the gnevor's applIcatIOn for retIrement was dunng the Stage 2 conference call concernIng the termInatIOn gnevance Mr Moore has been a member of the OPS SInce 1985 first wIth the Mimstry of CorrectIOnal ServIces In the Toronto JaIl untIl 1998 when he became a Labour RelatIOns Consultant wIth the Mimstry of Consumer and BUSIness ServIces Presently he IS the Manager of the Human Resource ServIces DelIvery Umt. He became Involved In thIS matter on December 10th through a telephone call from Ms McDevItt She explaIned that she had been contacted by the polIce about the allegatIOns agaInst the gnevor and he advIsed her to suspend the gnevor wIth pay to InVestIgate the allegatIOns and to cooperate wIth the polIce Later In that month the grounds for 7 the allegatIOns were clanfied and the decIsIOn was made to renew the suspenSIOn for another 20 days, thIS tIme wIthout pay By thIS tIme the gnevor had filed a gnevance allegIng unJust suspenSIOn. A conference call was scheduled for January 22nd as a Stage 2 meetIng. The gnevor dId not attend that meetIng and the gnevance was demed. Mr Moore helped draft a letter dated January 20 2003 that set out the specIfics of the charges agaInst her and adVISIng her that a meetIng had been scheduled for January 30th and that, SInce dIscIplInary actIOn mIght ensue, she was entItled to a Umon representatIve After thIS Stage 2 conference call, Mr Moore consulted wIth Ms Hartmen and Ms McDevItt and the decIsIOn was made to termInate the gnevor's servIces In the Interval Ms McDevItt had receIved the gnever's applIcatIOn for retIrement. Mr Moore drafted a letter dated February 4 2003 In whIch he reJected her resIgnatIOn and advIsed her that she had been termInated for cause Mr Moore sent the letter to the last address on file He subsequently receIved an e-maIl from Ms Smder adVISIng hIm that the gnevor had a new address and provIdIng hIm wIth the post office box number He forwarded that new address to Ms Noreen Layog, secretary to Ms Hartmen. When Ms Layog receIved the e-maIl from Mr Moore she advIsed hIm that she had already sent the termInatIOn letter to the gnevor's old address the day before by couner Mr Moore responded that same day that IS February 11th by askIng Ms Layog to send a copy of the letter to the new address but, because It was a post office box, to send It by regular mall The next day Mr Moore provIded Ms Layog wIth another address, namely 220 Bay Street, Apartment 4 Because he had concerns about the delIvery of thIS notIce he asked Ms Layog to document the steps taken to delIver thIS letter Ms Layog prepared a schedule of her efforts whIch showed that she had ongInally sent a couner package to the gnevor on February 10th at 216 Bay Street, then sent It to her post office box the next day whIch was returned by the couner and resent by couner on February lih to the gnever's new address at 220 Bay Street. On February 1 ih Ms Layog receIved a call from the couner In Thunder Bay adVISIng her that the gnevor had not been home when the parcel was delIvered and that a note had been left askIng her to pIck up the package at the couner's office The gnevor had not contacted them and the couner was askIng for a telephone number to contact her dIrectly Ms Layog advIsed the couner that there was no phone number on file and the package was returned to Ms Layog on February 19th In the meantIme Mr Moore had been made aware that a gnevance had been filed about the termInatIOn and assumed that the gnevor had receIved notIce of the Employer's IntentIOns 8 A letter dated March 13 2003 sIgned by Mr Moore, referred to a Stage 2 telephone meetIng of February 26th denYIng the gnevance and takIng the posItIOn that the gnevor had been termInated for cause dunng the legIslated notIce penod under SectIOn 19 of the Public Service Act SUBMISSIONS OF THE PARTIES Mr GIlbert, representatIve for the Umon, took the posItIOn that the gnevor had retIred from her employment wIth the Mimstry and IS entItled to the all the retmng allowances under the collectIve agreement. RetIrement IS not a resIgnatIOn and the Public Service Act has no beanng on the gnever's nght to retIre In accordance wIth the penSIOn provIsIOns of the collectIve agreement and the applIcable statutory regulatIOns On January 29 2003 whIle the gnevor was on a thIrd twenty day suspenSIOn, she applIed for her penSIOn benefits, effectIve ImmedIately She had no other source of Income and was forced to resort to her penSIOn In order to survIve The letter was handed to Ms McDevItt, who accepted It wIthout comment. A meetIng was held the next day and no reference was made to the applIcatIOn for retIrement and there was no suggestIOn that the Employer Intended to reJect that applIcatIOn. In fact, on February sth the day after the termInatIOn letter had been drafted,Ms McDevItt told Ms Smder that the penSIOn papers for the gnevor had been forwarded wIthout any mentIOn of a reJ ectIOn or demal It was reasonable for the gnevor and the Umon to conclude that her request for retIrement had been accepted and was In the process of beIng completed. Dunng thIS tIme the gnevor was forced to move because of financIal problems but at no tIme dId she try to hIde her whereabouts She kept the Umon Informed of her current address and, because of her ball condItIOns, advIsed the shenfr s office of her address wIthIn 24 hours of any move The Umon, when asked, provIded the Employer wIth the most current address In ItS files The gnevor dId not aVOId servIce of the notIce of termInatIOn. Her eVIdence IS that she receIved It on eIther February 18th or 2Sth because those were the only days she went to the post office box to collect her mall The Umon submItted that the gnever's applIcatIOn for retIrement cannot be demed and she IS therefore entItled to all retmng allowances under the collectIve agreement. In the alternatIve, If 9 she was reqUIred to gIve notIce under the Public Service Act the Employer's reJ ectIOn of her request to retIre was gIven after the 2 week notIce penod and therefore was InvalId. The Public Service Act deals wIth resIgnatIOns It was Said there IS no penalty for non- complIance and the tIme lImIts are dIrectory not mandatory A faIlure to adhere to the notIce penod has no consequences and cannot depnve an employee of vested nghts under the collectIve agreement wIthout clear language to that effect. The purpose of the notIce under the Act IS to allow an employee a coolIng off penod to reconsIder hIs/her decIsIOn. It also gIves the Employer an opportumty to replace that resIgmng employee dunng the notIce penod. None of those factors apply In thIS case The gnevor had been away for SIxty days dunng her suspenSIOns and there was no Issue of replacIng her for the two week notIce penod. There was no questIOn of a coolIng off penod wIthIn whIch she could or would reconsIder her decIsIOn. In any event, It was argued, sectIOn 19 does not gIve the Employer the nght to reJect the request for retIrement. It gIves the employee the nght to reconsIder If the Employer Intended to rely on thIS legIslated nght, It should have told the gnevor and the Umon of ItS IntentIOn as soon as It receIved the letter of retIrement. The Umon was seekIng a declaratIOn that the gnevor had been Improperly termInated, an order that all references to a termInatIOn be removed from her file, an amendment to her file to reflect her retIrement from employment and payment, wIth Interest, of all retmng and severance allowances due to her under the collectIve agreement. It also asked that the Board remaIn seIzed In the event the partIes encounter dIfficulty In ImplementIng thIS award. In support of ItS posItIOn the Umon relIed on the folloWIng case Re Greater Essex County District School Board and Elementary Teachers' Federation of Ontario (Olgan Grievance) [1999] O.L AA No 635 (Swan) Re United Electrical Workers, Local 514, and SCM (Canada) Ltd. (15 L.AC 332 (RevIlle) Re Capital Records - EMI of Canada Ltd. v Gosewich et al (1977) 17 O.R. (2d) 510 (High Court of JustIce) Re International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 303 and Frigidaire Products of Canada Ltd. Leaside (1953) 5 L.AC 1601 (Cross),Re Canada Post and Canadian Union of Postal Workers (Grantmeyer) (1991), 21 LAC (4th) 59 (JollIffe) and Re OPSEU (Muir) and Ministry of Labour (1994), GSB # 3166/92 (Gray) 10 Ms Mohamed, counsel for the Employer took the posItIOn that there IS no legal dIstInctIOn between retIrement and resIgnatIOn. The questIOns for thIS Board to answer are whether the gnevor complIed wIth the reqUIrements of the Public Service Act and, If she dId not, whether the Employer has the nght to reJect her request to retIre In the CIrcumstances If the Board accepts the Umon' s posItIOn that the tIme lImIts In the Act are dIrectory was the delay In notIfYIng the gnevor of her termInatIOn reasonable In the CIrcumstances It was Said there was no real dIspute about the facts, sImply the meamng to be gIven to those facts The Umon representatIve was present for the January 30th gnevance meetIng and must have known what was to follow There was no oblIgatIOn on the Employer at that tIme to advIse the Umon of ItS decIsIOn. The Employer was entItled to consIder what It had learned at the meetIng before It made up ItS mInd to dIscharge the gnevor In fact, that IS the purpose of the stage 2 meetIng, to consIder the gnevor's verSIOn of the events before reachIng a final decIsIOn. The Umon filed a gnevance challengIng the dIscharge on February 13th That gnevance was not filed subJect to the gnever's consent. The Employer was entItled to accept that gnevance of proof of the gnevor's knowledge of the dIsmIssal The Umon has alleged that It dId not know the Employer had reJected the applIcatIOn for retIrement untIl February 26th but the notIce of termInatIOn was Itself notIce of the demal of the request for retIrement. The Employer submItted that the request for retIrement dId not meet the reqUIrements under the Act The fact that Ms McDevItt accepted the letter from Ms Smder cannot be taken as acceptance of the request Itself She merely took the letter to forward It to the appropnate people for consIderatIOn. The letter of termInatIOn was forwarded to the address on the letter of resIgnatIOn. That was the address on file at the tIme and was the proper address for servIce The Employer dId not know of an alternatIve address untIl February 10th when Ms Smder e-maIled Mr Moore the gnever's post office box number The gnevor faIled to keep the Umon or the Employer appnsed of her current address and the Employer cannot be penalIzed for haVIng acted on the InformatIOn provIded by the gnevor It was reasonable In the CIrcumstances for hIm to send the notIce of termInatIOn to the address provIded by the gnevor 11 UntIl February 10th everyone belIeved that the gnever's address was 216 Bay Street. When the Employer was advIsed the letter had not been delIvered, It took Immediate steps to ensure prompt delIvery It acted reasonable In all respects In the CIrcumstances The GSB It was Said, had Interpreted sectIOn 19 of the Act In Re OPSEU (Witherow) and Ministry of Labour (2000) GSB # 0912/98 (HerlIch) whIch concerned the questIOn of whether the gnevor could rescInd hIS letter of Intent to retIre He had tendered hIS request for retIrement but later asked to be reInstated to hIS former posItIOn In accordance wIth sectIOn 19 of the Act Vice-Chair HerlIch referred to an earlIer award of Vice-Chair FIsher (Rao, 1542/85, 1543/85, 1544/85) whIch had consIdered and reJected a sImIlar claim and stated "The decIsIOn as to whether or not to accept a wIthdrawal of a resIgnatIOn IS a management functIOn, not open to arbItral reVIew unless the collectIve agreement clearly provIdes for It" It was submItted that thIS Board must follow the Rao decIsIOn. In summary the Employer took the posItIOn that there IS no dIfference In law between a resIgnatIOn and a retIrement under the Public Service Act and the Act reqUIres two weeks notIce The gnevor dId not provIde those two weeks notIce and the Employer has the dIscretIOn to accept or reJ ect her request by statute and by common law Even If the Umon's premIse IS accepted and the two week notIce penod IS dIrectory the delay In provIdIng notIce to the gnevor of the demal of her retIrement request and termInatIOn was not unreasonably delayed and should be found to be valId. In support of ItS posItIOn, the Employer relIed on the folloWIng cases Re Basu and Treasury Board (National Defence) (1990) 17 P S S.R.B DecIsIOns 37 (DIgest) Re Ianni and Liquor Control Board of Ontario (1990), GSB # 552/88 (Barrett),Re Oxman v Dustbane Enterprises Ltd. [1986] OJ No 718 Re Streeting v Canada (Minister of Employment and Immigration) [1988] 2 F C 426 Re Miracle Food Mart and UFCW, Local 175 and 633 (1983), 11 LAC (3d) 320 and Re Nova Scotia Civil Service Commission and Nova Scotia Government Employees Union (1986), 27 L AC (3d) 120 (Outhouse) 12 REASONS FOR DECISION The sole questIOn before me In thIS prelImInary matter IS whether the Public Service Act gIves the Employer the nght to reJect an applIcatIOn for retIrement thereby denYIng the gnevor the retmng allowances otherwIse due her under the collectIve agreement. The facts as set out are clear The gnevor was suspended wIth pay for 20 days pursuant to the Act That suspensIOn was extended tWIce more for total of 40 days wIthout pay agaIn pursuant to the Act Dunng that tIme penod, the gnevor applIed for her penSIOn benefits In accordance wIth the collectIve agreement. I begIn by notIng that the gnevor has the uncondItIOnal and absolute nght to retIre and claim her penSIOn benefits She qualIfies for a full penSIOn wIthout restnctIOn and cannot be demed those benefits The questIOn before me IS not whether she can retIre but rather whether her applIcatIOn for her penSIOn became effectIve before or after her termInatIOn and what effect, If any the tImIng of her retIrement has on other entItlements under the collectIve agreement. DealIng first wIth the questIOn of JunsdIctIOn, the Employer relIed on the Rao and Witherow decIsIOns for the proposItIOn that a panel of the GSB has no JunsdIctIOn to consIder the exerCIse of an employer's dIscretIOn under sectIOn 19 If those cases dId determIne that Issue I would be bound by them and would have no alternatIve but to dIsmIss the gnevance However that IS not what the cases stand for In both of those cases the Issue was whether the employer's decIsIOn to refuse to accept a request to wIthdraw a resIgnatIOn and/or a retIrement was open to challenge The answer In both cases was that the employer's dIscretIOn was a managenal functIOn that was not subJect to arbItral reVIew In the Instant case, that IS not the Issue before me The gnevor IS not askIng to wIthdraw her applIcatIOn for retIrement. It IS the Employer who IS relYIng on the tIme lImIts In the Act as grounds for ItS refusal to accept that request, whIch IS a dIfferent matter and, In my VIew dIstIngUIshes It from the Rao and Witherow decIsIOns The Employer took the posItIOn that the reference to two weeks notIce under the Act IS mandatory and a faIlure to comply wIth those tIme lImIts entItles the Employer to reJect that request as InvalId. The Issue of tIme lImIts under a collectIve agreement has been the subJect of much lItIgatIOn In the past, most commonly concernIng the questIOn of whether tIme lImIts under a gnevance procedure are dIrectory or mandatory Those cases provIde some gUIdance In determInIng the InterpretatIOn to be gIven to the tIme lImIts In the Act. It has been umversally 13 accepted that where a collectIve agreement provIdes a penalty for a faIlure to meet the tIme lImIts, those tIme lImIts are to be stnctly enforced. If there IS no express consequence for non- complIance, an arbItrator must look at the agreement as a whole to determIne whether the partIes Intended the tIme lImIts to be mandatory notwIthstandIng the absence of a penalty A reVIew of the Act IS not helpful There are no IndIcatIOns In the Act of the IntentIOns of the partIes that would assIst me In answenng thIS questIOn However In readIng sectIOn 19 In ItS entIrety I belIeve the purpose of the provIsIOn IS clear The Employer IS entItled to two weeks notIce of an employee's IntentIOn to resIgn so that It wIll have an opportumty to take steps to replace the employee wIthIn the notIce penod. Indeed, sectIOn 19 specIfically allows an employee a WIndow wIthIn those two weeks to reconsIder hIs/her decIsIOn before that replacement has been found. The two week notIce penod IS meant to ease the transItIOn penod by allowIng the employer tIme to find that replacement or at least, take steps to do so In the Instant case no such consIderatIOns apply The gnevor had been off work SInce early December and the Employer dId not need two weeks notIce of her departure for replacement purposes SImIlarly there was no need for a coolIng off penod SInce there was no questIOn about the gnevor's return. In the CIrcumstances I am unable to conclude that the two week notIce penod under the Act IS mandatory Even IfI am wrong and the tIme lImIts are mandatory the Employer faIled to reJect her applIcatIOn for retIrement dunng the two week notIce penod. The request for retIrement was dated January 29 2003 The letter of termInatIOn was dated February 4th but was not receIved by the gnevor untIl February 18th or 25th dependIng on when the gnevor retneved her mall at the post office WhIle I accept the Employer's eVIdence that It took steps to delIver the letter dunng the two week notIce penod, the fact IS, It dId not reach the gnevor untIl February 18th at the earlIest, some twenty days after the request for retIrement. There IS no eVIdence that the gnevor aVOIded servIce Indeed, her eVIdence was that she expected the suspenSIOns to contInue untIl the cnmInal charges had been resolved and had no reason to belIeve a letter of termInatIOn would be forthcomIng. She had applIed for her penSIOn and assumed her employment wIth the Mimstry had ended. There would have been no reason to aVOId servIce 14 The letter seekIng retIrement was dated January 29 2003 The Employer receIved that request on January 29th by hand, and I agree wIth the Employer that the fact Ms McDevItt took posseSSIOn of the letter IS not proof of acceptance by the Employer of the retIrement request. There were several opportumtIes after that date for the Employer to have put the gnevor or the Umon on notIce that It was consIdenng whether to accept that retIrement as a resIgnatIOn. DespIte dIscuSSIOns wIth the Umon about the forms and executIOn of the necessary documents, neIther the Umon nor the gnevor had any reason to belIeve there was an Issue about her retIrement. When the Employer determIned that termInatIOn was the appropnate actIOn, It sent a letter to the gnevor adVISIng her of ItS decISIOn. AcceptIng wIthout decIdIng that the Employer had the authonty to reJ ect the gnevor's retIrement request, the Act reqUIres that the notIficatIOn of that reJectIOn must be made wIthIn the two week tIme lImIt In the Act, whIch, In thIS case, would have been February 12,2003 However through no fault of the gnevor that letter was not delIvered to her untIl eIther February 18 or 25 2003 Even If! were to accept the receIpt of the letter at the Umon's office on February 13th as the date notIce was receIved, It was stIll outsIde the two weeks stIpulated In the Act Except for the date on the letter of termInatIOn, all of the relevant dates for actual delIvery fall outsIde of the two weeks the Employer relIes on as grounds for ItS refusal to accept her retIrement. When It was advIsed that the old address on file was no longer correct It took steps to effect delIvery by regular mall and by couner None of those efforts were successful and the gnevor dId not receIve the notIce untIl after the two week tIme frame In the Act The Muir case (supra) IS of some assIstance In the Instant case SInce It deals wIth some of the same Issues The gnevor was on her probatIOnary penod when she was gIven approval for a vacatIOn from December 17 1992 to January 4 1993 InclUSIVe She had begun her employment wIth the Mimstry on December 30 1991 and receIved a letter from the ActIng Deputy Mimster releasIng her from employment effectIve December 31 1992 On December 16 Just pnor to her vacatIOn, she had been gIven a letter adVISIng her that It was unlIkely she would be appoInted to permanent staff at the conclusIOn of her probatIOnary penod. It was agreed that letter was not notIce of her termInatIOn. By letter dated December 18 the ActIng Deputy Mimster advIsed her of her release from employment effectIve December 28 1992, In accordance wIth sectIOn 22(5) of the Public Service Act. The letter was receIved by the gnevor In an envelope post stamped December 24th whIch the Board accepted as the date IS had been maIled. It also found that there could be no expectatIOn that a letter maIled on Chnstmas Eve would be delIvered by December 15 31 the effectIve date of her release The gnevor returned from her vacatIOn on December 31 1992 and receIved the letter that same day VIa couner The bIll of ladIng IndIcated the letter had been gIven to the couner on December 30 1992 SectIOn 22(5) of the Act read as follows 22(5) A deputy minister may release from employment any public servant during the first year of his employment for failure t meet the requirements of his position. The Board, at page 4 said the folloWIng A "release" IS a termInatIOn of employment. Employment IS a contractual relatIOnshIp whIch may be brought to an end In a vanety of ways ThIS IS not the occaSIOn for an extended dIscourse on that subJect. Suffice It to say that unless It provIdes otherwIse, a contract of employment of Indefimte duratIOn wIll not be brought to an end by the mere desIre of the employer to end It If the employee has no notIce of that desIre In that case the employer had not challenged the umon' s posItIOn that an employee must be gIven notIce of a release In order for It to be effectIve The employer argued that notIce was gIven on December 18th when the letter had been maIled or In the alternatIve, a reasonable tIme after It was maIled. The Board found, at page 6 as follows NotIce to the gnevor was not effectIve when It was maIled. In our VIew It was only effectIve when receIved. The result would have not have been dIfferent, however If the rule were that maIled notIce was effectIve wIthIn a reasonable tIme after maIlIng. A reasonable tIme would be the tIme WIthIn It would be reasonable to expect that the notIce would come to the attentIOn of an addressee who was not aVOIdIng servIce As we have already observed, there was no reasonable prospect that a letter tendered to the post office on Thursday December 24 1992 for delIvery by regIstered mall would reach the gnevor before Wednesday December 30 1992, the anmversary If her first day of employment. The Board found the gnevor had not been released before the completIOn of her probatIOnary penod and therefore had not been released In accordance wIth the Act It stated clearly that notIce to the gnevor was not effectIve untIl It was receIved. Even If It gave the benefit of the doubt to the employer It found that the steps taken to delIver the notIce fell short of what It determIned would have been the reasonable expectatIOns of delIvery I accept the proposItIOn that notIce IS only effectIve when It has been receIved. There IS an oblIgatIOn on the Employer to ensure an employee receIves notIce of a termInatIOn wIthIn any tIme lImIts that are applIcable In the Muir case, her probatIOnary penod ended on December 30th The Employer therefore had to provIde notIce of ItS IntentIOn to release her dunng the 16 probatIOnary penod, and not the day after as IS what happened In thIS case The Board In that case also entertaIned the suggestIOn that receIpt can be Inferred wIthIn a reasonable penod of tIme after maIlIng but that, In the CIrcumstances of the holIday season, there was no reasonable expectatIOn of a tImely delIvery In the Instant case the letter was dated February 4 2003 and was sent by couner on February 10th to the gnevor's old address Mr Moore was advIsed that same day about the gnevor's new address and Instructed Ms Layog to send the letter by regular mall SInce he only had a post office box number The next day that IS February lih another attempt was made to delIver the notIce by couner to the 220 Bay Street address Even If the couner had managed to delIver the letter that day the effectIve date of the gnevor's retIrement was January 29 2002, more than two weeks before the letter of termInatIOn could have been delIvered. Even If one accepts the Umon's receIpt as February 13 2002, that IS outsIde of the tIme lImIts relIed on by the Employer The Employer has urged me to find that, even If It dId not commumcate ItS IntentIOn to dIscharge the gnevor dunng the notIce penod, It took all reasonable steps to delIver that notIce and the Board should accept those efforts as sufficIent to meet the reqUIrement of the Act It also took the posItIOn that, at common law It retaIned the nght to dIscharge the gnevor wIthIn a reasonable tIme frame whIch could be outsIde the two weeks In the Act In some CIrcumstances With respect to the Issue of the reasonable steps taken by the Employer there IS no eVIdence before me of any attempts to delIver the February 4th letter untIl February 10th Mr Moore became aware of the problems wIth delIvery on February 10th when he was told the gnevor had a new address He spoke to Ms Layog the next day and advIsed her to send the letter to the mall box number by regular mall He must have known that the gnevor could not receIve that letter before the 2 week notIce penod had expIred. Even when he was told on February lih of the new address, he left It to Ms Layog to delIver the letter wIthout any partIcular InstructIOns about tIme lImIts He, or the Mimstry knew about the terms of her probatIOn and could have taken steps to ascertaIn her address from the shenff's office and could have made arrangements for the shenff to delIver the letter by hand. In fact, knowIng the tIme constraInts, It could have had the letter delIvered by hand on the 10th 11th or even thelih to ensure a tImely delIvery The Employer had asked thIS Board to apply the terms of the Act stnctly and to find that a faIlure to adhere to those stnct terms renders the gnevor's retIrement InvalId. On the other hand It asked thIS Board to find that ItS common law nghts allow It to reJect a resIgnatIOn or retIrement at any 17 tIme subJ ect only to a test of reasonableness It seems to me that IS an untenable proposItIOn. AcceptIng wIthout decIdIng that questIOn, If the Act In ItS stnctest applIcatIOn, can operate to deny employees nghts and benefits due to them under the collectIve agreement, It must be applIed In a consIstent and fair manner by all partIes affected by It. Many of the cases referred to by the partIes have lIttle dIrect relevance to the Instant case The Greater Essex County Case (supra) dealt wIth the Issue of the payment of a retmng gratUIty to an employee who had purported to retIre In fact, the Board found that he dId not meet the terms of the penSIOn plan and therefore was only entItled to the commuted value of hIS pensIOn, not the retIrement allowance he had claimed. The case IS of lImIted assIstance to the Instant case SImIlarly the Canada Post (Grandmeyer), Frigidaire Products, SCM Canada and Ianni cases (supra) dealt wIth the Issue If whether an employee can rescInd a resIgnatIOn and/or whether the employer IS oblIgated to accept that repudIatIOn. For the most part that Involves a consIderatIOn of the subJectIve and obJectIve elements of the resIgnatIOn WIth a VIew to assessIng the true IntentIOns of the employee That IS not the case In the Instant gnevance The gnevor Intended to retIre and never changed her mInd. DECISION The notIce of termInatIOn was not delIvered wIthIn the two week tIme lImIt the Employer claims was avaIlable to It. AccordIngly even of It had the authonty to reJ ect the gnevor's request for retIrement and elect to termInate her servIces, It faIled to do so In a tImely fashIOn. The gnevance IS upheld. I wIll remaIn seIzed In the event the partIes have dIfficulty In ImplementIng thIS award. Dated at Toronto thIS ih day of December 2004 Loretta Mikus, Vice-Chair