HomeMy WebLinkAboutUnion 06-04-1104'12/2008 15;04 FAX 4169259933
In the Matter of an Arbitration
Retween
Providence Continuing Care Centre
St. Mary's of The Lake
(Hereinafter referred to as "the Employer")
And
Ontario Public Service Employees' Inion -- Focal 483
(Hereinafter referred to as "the union-)
Regarding:
Sole Arbitrator: r
For the Union: .
For the Employer:
Union Grievance
Felicity D. Briggs
Peggy Smith., Counsel
Bob Cook
Vincent M. Panetta, Counsel
Ron Pearson
Elizabeth Soden
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On February 11, 2005, the Union filed agrievance that alleged the o Ern t
violated Articles 17.02 P yer
�) and 17.10(c) which are the termination and
severance provisions of the Collective Agreement and requested Ul redress.
The parties provided the following Agreed Statement of Fact:
1. The Employer is a non-acute, complex continuing care, rehabilitative
and palliative care facility which is part of the Providence Continuing
Care Centre ("PCCC") in Kingston, Ontario. PCCC also operates a
Mental Health Site and Providence Marior in Kingston, Ontario, In
addition, PCCC also operates St. Vincent de Paul Hospital located in
Brockville.
2. The Employer is a 64 bed facility with approximately
represented by the Union, the Canadian National Federation
employees
Independent Unions and the Ontario Nurses' Association. of
3. The Union represents paramedical employees working with the
Employer.
4. The parties are bound to a Collective Agreement as attached.
5. As a result of the Ministry of Health's balanced budget initiatives the
Employer reduced serviced in orthotics and speech tanguage '
the
6. Five employees were affected and received notices of layoff- The
were as follows: y
(a) Luc Chau, an orthotist, was issued a notice of layoff dated
January 27, 2005 to take effect on May 27, 2005;
(b) Kristine Jones, an orthotist, was issued a notice of layoff dated
January 27, 2005 to take effect of May 27, 2005;
(c) Robert O'Brien, an orthotist technician, was issued a notice of
layoff dated April 27, 2005 to take effect ozr July 27, 2005;
(d) John Ross, an orthotist technician, was issued a notice of layoff
dated January 27, 2005 to take effect on May 27, 2005;
(e) Martin Robertson, a professional practice leader, was issued a
notice of layoff dated January 27, 2005, to take effect on May
27, 2005;
(f) Audrey Brown, a speech pathologis
This employee's position t, was issued a notice of
layoff dated January 26, 2005 to take effect of May 26, 2005.
was not eliminated and she remains in
the workplace as a 0.5 FTE Speech Language Pathologist.
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7. During the operation of the notice periods, the above noted employees
were not required to come to work but had all of their terms and
conditions of employment continued until such time as the effective
date of layoff was reached or they otherwise resigned from
employment.
8. All of the affected employees received their full notice period with the
exception of Mr. Robert O'Brien, as outlined in Paragraph 9.
9. Of the affected employees, only Mr. O'Brien opted to receive the
separation allowance in accordance with Article 17.10 and resigned
by letter dated July 26, 2005 which took effect on the saane day.
10 -In response to the notices of layoff having been issued, the Union
filed a policy grievance dated February 11, 2005 alleging violations of
article 17.02(b) and 17.10(c) of the Collective Agreement between the
Employer and Union which expired March 31, 2004.
11. The grievance has been referred to arbitration and is scheduled to be
heard by Arbitrator Briggs on December 20, 2005 at which time the
Parties will make legal argument.
There was no dispute between the parties that the above facts did not cause
any employee to be affected in such a way so as to require compensatory
remedy in the event the grievance; was to succeed.. However, it became
evident through the layoff process set out above that the parties have
disparate views on the issues of termination and severance. For that reason,
this award will be only declarative in nature and will clarify the Collective
Agreement provisions for the parties.
The relevant provisions of the Collective Agreement are as follows:
17.02 A "layoff' includes a temporary or permanent discontinuation
Of work or reduction in hours of work_ I. the event of a proposed
layoff at the Hospital of a short-term (less than three (3) months) or
.long-term. nature (three (3) months or longer), the Hospital will:
(a) for short-term layoff provide no less tlian
thirty notice to the affected employees(s)or u t (30) days
no less than pay in lies thereof, and
thirty (30) days notice to the Union, indicating the
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reasons causing the layoff, the anticipated duration of the layoff
and identify the employees likely to be affected. If requested,
the parties will meet.
(b) for long-term layoff provide the Union with no less than
four (4) months written notice of the proposed layoff or
elimination of position; and
ffcted
employees(s), if any, no less than three e (3) months to the awritten
notice of layoff or pay in lieu thereof, and meet with the Union
to review the following.
(i) the reason causing the layoff,
the service the Hospital will undertake after the
layoff including the areas of cut-back and the
employees to be laid off;
And plan the following:
(iii) the method of implementation;
(iv) revised work schedules including reallocation of
hours of work among full -bane and part-time
employees with due regard to seniority;
(v) ways the hospital can assist the employees to find
alternate employment including identifying vacant
positions within the hospital for which surplus
members of the bargarrtrng unit might qualify,
such positions which are currently ed ut which
are expected to become vacant within a twelve
17.04 (12) month period.
(a) For short-term layoff the available work assignments shall be
distributed to the most senior incumbents of the classification illi
capable of performing the available job dutie
where operationally feasible provided that they are killing and
s to ensure to the
greatest extent possible that the layoff impacts the most junior
employee(s). No bumping is permitted.
For the purpose of this provision only, the terms "classification"
shall have a broad meaning to include all jobs which have the
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same professional base; example Practice Leader — Physiotherapy
and Physiotherapist is one classification_
(b) An employee who is subject to a long -terra layoff shall have the
right to
(i) accept the layoff; or
displace an employee who has lesser bargaining unit
seniority in a lower or identical paying classification if
the employee originally subject to layoff can perform the
duties of the lower or identical paying classification
without training or other orientation; or
elect to transfer to a vacant position provided haat she is
qualified to perform the available work; or
(iv) opt to receive the separation allowance as outlined in
Article 17.10; or
(v) opt to retire, if eligible under the terms of the Hospitals
of Ontario Pension Plan (HOOPP) as outlined an Article
17.10.
1.7.10
(a) The local Human Resources Plan will apply to the Health Services
Restructuring Commission directives. In other circumstances, the
balance of this Article will, apply.
(b) At the time of issuing notice of long-term layoff pursuant to
Article 17.02(b), the Hospital will offer early retirement ahowance to
a sufficient number of employees eligible for early retirement under
the Hospital's pension plan, in order of seniority, to the extent that the
maximum number of employees within a classification who elect
early retirement is equivalent to the number of employees who would
Otherwise be subject to layoff under Article 17.02.
An employee who elects an early retirement option shall receive,
following completion of the last day of work, a retirement allowance
Of two (2) weeks, salary for each year of service, to a maximum
ceiling of fifty-two (52) weeks, salary,
(c) Where an employee has received individual notice of long teras
layoff under Article 17.02(b) such employee may resign and receive a
separation allowance as follows.
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(i) Where an employee resigns effective within thirty (30) days
after receiving individual notice of long term layoff, she or he
shall be entitled to a separation allowance of two (2) weeks'
salary for each year of continuous service to a maxim -am of
sixteen (16) weeks' pay, and, on production of receipts from an
approved educational program, within twelve (12) months of
resignation will be reimbursed for tuition fees up to a maximum
of three thousand ($3,000,00) dollars.
(ii) Where an employee resigns effective later than thirty (30)
days after receiving individual notice of long term layoff, he or
she shall be entitled to a separation allowance of four (4) weeks
salary, and, on production of receipts from an approved
educational program, within twelve (12) months of resignation
will be reimbursed for tuition fees up to a maximum of one
thousand two hundred and fifty ($1,250.00) dollars.
I was also provided with copies of the letters sent to the affected employees
The letter to Mr. O'Brien, which was virtually identical to the others, stated
the following:
As you may be aware, the provincial government has introduced new
accountability requirements for all Ontario hospitals, which includes
eliminating operating deficits by March 2006. hospitals operating
with a deficit of two percent or more were required to submit a
Balanced Budget Plan to the Ministry of health & Long Tern. Cave,
to identify the ways in which the deficit would be eliminated. Savings
through efficiencies were identified across the Hospital as an outcome
of an Operational Improvement process completed in the summer of
2004, and were included in the Balanced Budget Plan„ As a result of
the approval to implement the efficiencies contained in our Balanced
Budget Plan and in accordance with Article 17.02(b) of the Collective
Agreement, this letter serves as formal notice that the position you
currently occupy as Orthotist Technician will be eliminated effective
July 27, 2005. Your actual completion date in your current position
will be determined by your election under the layoff entitlements
outlined below.
Under the provisions of the Collective Agreement Article 17,04 (b)
you may elect to:
1. Accept the layoff, or
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2. Displace an employee who has lesser bargaining unit
seniority in a lower or identical paying classification if you
can perform the duties of the lower or identical paying
classification without training other than orientation; or
3. Elect to transfer to a vacant position provided that you are
qualified to perforin the available work; or
4. Opt to receive the separation allowance as outlined in
Article 17.10 (estimate as of April 26, 2005 as per Article
17.10 c) i) to be $6,859.80 or as per Article 17.10 c) ii),
$3,429.90; or
5. Opt to retire, if eligible under the terms of the Hospitals of
Ontario Pension Plan (ie. Enrolled in HOOPP and currently
age 55 or older) -
Enclosed is a seniority list and a list of classifications with their pay
rates. You must advise the Hospital of your election within seven (7)
days after receiving this notice of layoff.
To help you during this period of transition, you may wish to avail
Yourself of the Employee Assistance Program (EAP) whose
information is also attached. The decision to seek assistance is your
own and all meetings with the counselor are kept in strict confidence.
We would sincerely thank you for the dedicated service that you have
provided. Please do not hesitate to contact Human Resources should
You require any additional information or have any questions
concerning this matter.
The parties also referred to the Employment Standards Act, 2000 S-®_ 20007
c, 41 (hereinafter referred to as "the Act"). Relevant provisions of the Act are
as follows.-
Part
ollows:
Part XV
Termination and Severance of Employment
Termination of Employment
54. No termination without notice. — No employer shall terminate
the employment of an employee who has been continuously employed
for three months or more unless the employer,
(a) has given to the employee written notice of termination in
accordance with, section 57 or 58 and the notice has expired; or
N has complied with section 61.
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61- (1) Pay instead of notice. — An employer may terminate the
employment of an employee without notice or with less notice than is
required under section 57 or 58 if the employer,
(a) Pays to the employee termination pay in a, lump sura equal to the
amount the employee would have been entitled to receive under
section 60 had notice been given in accordance with that section; and
(b) continues to make whatever benefit plan contributions would be
required to be made in order to maintain the benefits to which the
employee would have been entitled had he or she continued to be
employed during the period of notice that he or she would otherwise
have been entitled to receive. 2001, c_9, Sch.1, S. 1(1,4)
The parties were agreed that for the purposes of this decision I ought to
consider facts of a permanent layoff.
Simply put, the issue before me is whether an employee who has received
Iayoff notice and who elects to receive a separation allowance, in accordance
with Article 17.10(c) is disentitled to receive their- pay in lieu of notice as set
Out in Article 17.02(b). It was the position of the Employer that if an
employee elects to receive separation allowance in accordance with Article
17.10(c), then he has chosen to resign his employment and is therefore not
entitled to other provisions. The Union contended that in instances where
employees receive notice of permanent layoff with their work being
discontinued, the Employer cannot convert a termination of employment
into a resignation from employment.
UNION SUBMISSIONS
Ms. Smith, for the Union, asserted that the layoff scheme in the instant
Collective Agreement is a step by step progression of events that must be
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strictly followed. It is important to recall in the fact situation before me that
there was no work for any of the affected employees. With that fact in mind,
a review of the contractual scheme of layoff is useful_ Article 17.02 defines a
permanent layoff and subsection'
(b) requires the Employer to provide the
union with four months notice while employees are to receive no less than
three months notice of layoff or pay in lieu thereof it is not until employees
have received this notice, or pay in lieu, that the options found at Article
17.04 are offered. Article 17.04 provides certain rights and employees can
elect to receive a separation allowance found in Article 17.10(c). That right
only crystallizes after notice of layoff is received. To be clear, electing to
receive separation allowance is dependant upon having already received the
mandatory notice.
The Union took strong offense to the Employer's position that an employee
who elects separation allowance has left their employment voluntarily.
Notice as set out in Article 1.7.02 is a condition precedent to allow access to
the separation allowance found at article 17.10. If the parties meant the
separation allowance to be inclusive of the notice rights they would have so
stated clearly.
The terms of the Collective Agreement must be read in concert with the
provisions of the Employment Standards Act. Section 54 of the Act mandates
employers to give notice or pay in lieu thereof to employees and Article
17.02 complies with this model. The Union asserted that according to
Section 53.1(e) an employee who resigns after having been given notice of
termination from his employer is still considered to have his employment
terminated by the employer. Further, the statute says that the resignation is
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considered to be the date of the employer's termination This ensures that
employees are not required to wait for the end of the notice period prior to
getting on with their lives. In other words, the notice period is protected
irrespective of what the employee actually does during that period.
These parties have negotiated an enhanced severance package whereby
employees who are separated will get notice or pay in lieu thereof. Those
employees who sat at home during the notice period were paid. Indeed,
irrespective of what option employees elect they are entitled to the full
period of the notice. Nothing in Article 17.10 undermines or reduces this
right. The Union relied upon Re Wright Lithographing Co, and Graphic
Communications International union, Local 517 (2000), 91 L -A -C. (4th)
129 (Howe); and Re Victorian Order of Nurses and Ontario Nurses'
Association (2004), 134 L.A.G. (4"') 199 (Herlich).
EMPLOYER SUBMISSIONS
Mr. Panetta, for the Employer, said that the letters sent to ernployees have
three purposes. The first is to notify employees that at a future date their
Position will be eliminated. Second, the actual date of the end is made clear.
Finally, employees are told that the actual completion date in their current
Position depends on their election under the Collective Agreement.
It was the Hospital's position that an employee who elects to receive his
separation allowance as provided in article 17.10(c ) must first resign_ Once
a resignation is given, the employment relationship is severed in advance of
the Employer's proposed date of termination. That is to say, once an
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employee's resignation becomes effective there are no further entitlements
except those provided by Article 17.10(c).
The Employer submitted that if an employee elects either the fourth or f1fth
Option as set out in Article 17.04 s/he has ended the employment relationship
with either a retirement or a resignation. Contrast those options with the
earlier choices which contemplate accepting the layoff. If the Union's
position is adopted, all of the options would be akin to accepting the layoff.
In order for an employee to receive separation allowance as found. at Article
17,10(c) two things must first occur. That employee must have already
received notice in accordance with ,Article 17.02(b) and the employee must
have elected to resign. Article 17.10 then provides that the amount of the
allowance depends upon the timing of the resignation. There is a financial
incentive to resign early in the notice period. The Union's view of this
matter does not take this incentive aspect into account. If the Unions
Position were correct, why would the parties have built in this incentive for
early resignation?
Mr_ Panetta asserted that it is trite to say that a resignation is a voluntary act
that brings about an end to the employment relationship. In this regard the
Employer relied upon Re Redpath Industries Ltd. and ison et aI. (1985),
52 O.R. (2d) 770 (Ontario High Court of Justice, Divisional Court); and Re
Telegram Publishing co, Ltd. and Zwelling et al (1975), 67 D.L.R. 4.04
(Ontario Court of Appeal). These cases make clear that a resignation during
a notice period is voluntary and brings about no further payment beyond the
resignation date.
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The Employer suggested that the Union's case is premised on rights
crystallizing at the time the notice of layoff is issued. It is the Employer's
view that rights are not crystallized until the time of the layoff or the
termination. It is the actual layoff that brings the rights.
Mr. Panetta contended that the purpose of severance pay is to compensate
employees for their past investment with the Employer, that is, to recognize
their past service_ This purpose is to be distinguished from the notice
requirement which is given to provide employees with an opportunity to
seek out other employment before their present employment actually ends.
When these purposes are kept in mind it is evident that a voluntary
resignation eliminates the need for termination notice because the end of the
employment relationship is within the employees own determination..
The Employer said that Section. 63.1 of the Act does not apply because the
facts before this Board do not deal with the end of a business, In Re Fright
(supra) it was determined that the failure the include a provision such as
Section 63.1 in a Collective Agreement is cogent and must lead to a finding
that a resignation brings about the end of the employment relationship. It
was said that legislators specifically placed a "deeming" provision in the Act
as it relates to severance pay and in the absence of that language a
resignation ends the relationship.
By way of reply Ms_ Smith asserted that it is important to recall that in the
agreed facts there was a permanent discontinuance of an operation. There
was no further work for these employees and therefore irrespective of the
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wording of the notices, a recall was never going to occur_ In these
circumstances the Act considers the letters issued notice of termination, not
notices of layoff. Further, the jurisprudence provided by the Employer is of
little assistance because of the ever changing nature of the provisions of the
Act.
DECISION
Cinder the instant Collective Agreement employees are entitled to notice of
both temporary and permanent lay-offs. In the facts at hand, the employees
were each given a notice of permanent lay-off. The Union underscored the
Point that the work of these individuals was being eliminated. Perhaps it was
for this reason the Union suggested Section 53.1 of the Act ought to apply
because the Employer is permanently discontinuing the work. I disagree.
This is not a situation where the Employer is closing its business_
There was no dispute between the parties that the Employer correctly
followed the provisions of the Collective Agreement in the issuance of the
notices of lay off. In accordance with Article 17-02(b) the Employer notified
the individuals that because of certain government budget initiatives their
positions were being eliminated_ Each was told Haat their "actual
completion" date would be determined by their choice of various options as
provided in Article 17.04_
Setting out those alternatives again would be useful:
I7.04(b) An employee who is subject to a long -terra layoff shall have
the right to.
(i) accept the layoff, or
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displace an employee who has lesser bargaining unit
seniority in a Iower or identical paying classification if
the employee originally subject to layoff can perforin the
duties of the Iower or identical paying classification
without training or other orientation; or
(iii) elect to transfer to a vacant position provided that she is
qualified to perform the available work; or
(iv) opt to receive the separation allowance as outlined in
Article 17.10; or
(v) opt to retire, if eligible under the terms of the Hospitals
of Ontario Pension Plane (HOOPP) as outlined in Article
17.10.
The dispute between the parties became apparent as the result of Mr.
O'Brien's election_ He sought to receive separation allowance as provided in
Article 17. 1 0(c)(ii). Again, it would be useful to restate the relevant portion
of that Article. It states:
(c) Where an employee has received individual notice of long term
layoff under Article 17.02(h) such employee may resign and receive a
separation allowance as follows:
(i) Where an employee resigns effective within thirty (30) days
after receiving individual notice of long term layoff, she or he
shall be entitled to a separation allowance of two (2) weeps'
salary for each year of continuous service to a maximum of
sixteen (16) weeks' pay, and, on production of receipts from an
approved educational program, within twelve (12) months of
resignation will be reimbursed for tuition fees up to a maximum
of three thousand ($3,000.00) dollars.
(ii) Where an employee resigns effective Iater than. thirty (30)
days after receiving individual notice of long term layoff, he or
she shall be entitled to a separation allowance of four (4) weeks
salary, and, on production of receipts from an approved
educational program, within twelve (12) months of resignation,
will be reimbursed for tuition fees up to a maximum of one
thousand two hundred and fifty ($1,250,00) dollars.
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It was the Union's position that an employee who received notice in
accordance with Article 17.02 elected to resign and receive a separation
allowance as considered in Articles 17.04 and 17. 10, could not be disentitled
to receive their pay in lieu of notice. In other words, the Union contended
that an employee can receive both pay in lieu of notice and separation
allowance under the instant Collective Agreement. After much
consideration, I must disagree. Article 17.04 sets out the five options for
employees who have received a notice of long term layoff. In my view, the
Union's position is tantamount to electing two of these options
simultaneously and, simply put, it is not open to employees to do so_
Further, if the parties intended for employees to receive both pay in lieu of
notice of layoff and a separation allowance they would have clearly stated
those provisions. They did not, indeed, to the contrary, the parties set out
different options for employees. One is to accept the layoff and therefore
work until the end of the notice period or receive pay in lieu. A second is to
resign and receive a separation allowance. An employee is not entitled to
elect two options set out in article 17.04(b). Moreover, the right to separation
allowance provided at Article 17.10(c) is clearly predicated, upon the
employee having received notice of lay off and tendering their resignation.
In my view, once the employee has resigned they are not entitled to further
pay in lieu of notice of lay off beyond the effective date of their resignation.
The amount of the separation allowance will depend on the timing of the
resignation in relation to the employee's notice of layoff.
Most of the jurisprudence provided by the parties was of little assistance
because of evolving and changing legislation. Further, these cases are
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usually fact specific and turn on the particular language of the governing
Collective Agreement. However, the decision of Arbitrator Hoke was
helpful in Re Wright Lithographing. In that case the grievors had received
notice on September 23, 1999 that their employment would be terminated on
November 19, 1999. They each tendered their resignations and Ief1 work
Prior to November 19, 1999. It was the Union's assertion that the grievors
were entitled to receive severance pay as set out in the provisions of the
Collective Agreement. In his deliberations Arbitrator Howe analyzed the
Collective Agreement, the Act and prior jurisprudence. In denying the
grievances he found that the grievors were notified of the Company's
intention to terminate their employment on November 19, 1999 and they
would have remained employees until November 19, 1999 had they not first
resigned. It was determined that the end of their employment was the date
set out in their letters of resignation, not November 19, 1999. Accordingly
Arbitrator Howe found that the grievors' employment with the Company
was neither terminated nor severed but rather brought to an end by their
resignations. Applying those principles to the facts at hand leads to a finding
that once an employee tenders their resignation in accordance with Article
17.10(c), their employment and entitlement to further pay in lieu of notice
ends as of the effective date of their resignation_
In the instant matter the parties disagreed as to whether the notice of lay off
and the actual lay off were one or two distinct events. As set out in Re
Wright, 1 find these are two events, This issuance of the notice is an
announcement of an intended act. The actual lay off begins at the point when
the employee is not working and is not in receipt of compensation. This
distinction is true for lay off and for termination of employment. It therefore
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follows that those who have received notice remain employees during the
notice period unless a resignation or some other event brings the
employment relationship to an end.
Finally, there are no provisions 'n the Employment Standards .Act that would
have me agree with the Union's view of this matter. I rnust find that the
Employer's interpretation in this regard violates neither the Act nor the
Collective Agreement.
As set out at the beginning of this decision, the parties asked me to make a
finding based on facts with the understanding that such a determination
would provide guidance for the future. For all of the above reasons I fnd
that under the instant Collective Agreement, if an employee who receives a
notice of lay off as provided at Article 17.02(b) elects to receive the
separation allowance in accordance with Article 17,04(b)(iv) and resigns his
or her employment as set out in Article 17.10(c), their employment ends as
of the date set out in the resignation letter and not on the date set out in the
notice of termination letter. Accordingly, Pay in Iieu of notice would end as
of the date the resignation takes effect.
I remain seized in the event there are any Problems with the implementation
of this decision.
Dated in T ronto this 11 th day of April, 2006.
i
Felicity D. Briggs
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