HomeMy WebLinkAboutUnion 09-02-04
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Pioneer Youth Services (Toronto) Inc.
-and-
Ontario Public Service Employees Union
Group Grievance Re: Termination Pay
Lorne Slotnick, Arbitrator
Representing the Union - Tim Hannigan
No one appeal'ing for the Employer
Hearing - TOI'onto, Ont., February 4, 2009.
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AWARD
In this grievance, the union seeks termination pay 011 behalf of the entire bargaining unit,
which was laid ofT during the second half of 2007.
Emplover's (ailllre 10 (lJJ/Jear
I was appoi nted by the Ministry of Labour on September 16, 2008, to hear this grievance,
pursuant to Section 48 of the Labour Relations Act, 1995. When I contacted Paul Hensel,
the owner of the employcr, Pionecr Youth Services (Toronto) Inc., about scheduling a
hearing date, he advised that he did not care when the hearing took place because it was
unlikely he or anyone representing the employer would appear. I scheduled the hearing
for February 4,2009, and on the day prior, I sent Mr. Hensel an e-mail message
reminding him of the hearing and advising him that if he did not appear, the hearing
would proceed in the employer's absence. He replied as follows:
Inrcsponse to your email of Tuesday, February 3, 2009, please be advised that I
will not be attending the hearing ofthe OPSEU grievance, as we see this as
pointless since Pioneer Youth Services (Toronto) Inc. has been inactive since the
decision of the Licence Appeal Tribunal in January 2008. There are no staff
members or other representatives anymore and the company is unable to continue
to operate without a licence. The Ministry made it very clear that they will not
issue a new licence to myself or anymore that had been employed with the
company.
There are no assets, moneys or other items that could be sold, just a massive debt
due to costs associated with the appeal.
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Furthermore, I am currently not gainfully employed so that any costs involved in
this hearing would just add to the above noted debt.
The hearing was convened on February 4, and I proceeded in the absence of anyone
appearing on behalf of the employer.
Backf!rolllul facls
At the brief hearing, counsel for the union made submissions and I also heard from Lynda
Roach-Ferguson, an OPSEU staff representative, and Michelle Ramsay, a former
employee of Pioneer. I accept their evidence, which was generally confirmed by
documents the union provided to me.
The employer is a for-profit agency that operated up to four residences for youth and
children in the Scarborough area of Toronto. Mr. Hensel apparently has owned the
business since 1996. The most recent collective agreement with OPSEU rall fi'om
November, 2003, until March 31,2008, and covered a bargaining unit of about 15
employees, mainly child and youth workers. Pioneer was licenced under the Child and
Family Services Act, but the licence was revoked in 2007 and an appeal by Mr. Hensel of
that decision failed.
As Pioneer was fighting the licence revocation, its clients were being transferred to
residences operated by other agencies, prompting the employer to begin laying off staff.
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The evidence is that employees were told the layoffs were temporary; for example, Ms.
Ramsay's layoff notice, which was dated Octobcr 4, 2007, and put into evidence, states
that her employment "has been temporarily suspended due to a shortage of work,"
effective the week before, and adds that "the recalling of employees will occur, should
the situation at Pioneer improve," No mention is made of termination pay.
The layoffs wcre not temporary, however. The evidence indicates that employees were
paid all wages and vacation pay owing, and their benefits were continued for several
weeks, but none was ever recalled to work, and benefits were ended, [n January, 2008,
thc union learncd that Mr. Hensel's licence appeal had been rejected and attempted to
speak to the employer about whether the layoffs were permanent and about an order from
a pay equity review officer that also was released that month, Ms. Roach-Ferguson said
Pioneer did not respond to any messages in the early part of2008, nor did it respond to a
notice to bargain a new collective agrecment dated February 13,2008. The union filed
the grievance that is now betore me on February 13,2008.
The collective agreement has language on layoff and recall, but no mention of
termination or severance pay. The union relies on the minimum standards set out in the
Employment Stal1dal'd\' Act, 2000. The relevant portions of that legislation read as
follows:
No termination without notice
54. 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 wriUen notice of termination in accordance with section 57
or 58 and the notice has expired; or
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(b) has complied with section 61.
What constitutes termination
~ An employer terminates the employment of an cmployee tor purposes of section 54
if,
(a) the employer dismisses the employee or otherwise refuses or is unable to continue
employing him or her;
(b) the employer constructively dismisses the employee and the employee resigns fi'om his
or her employment in response to that within a reasonable period; or
(c) the employer lays the employee olTtor a period longer than the period ofa temporary
lay-off.
T('mporary lay-off
CD For the purpose of clause (I) (c), a temporary layoff is.
(a) a lay-olT of not more than 13 weeks in any period of20 consecutive weeks;
(b) a lay-off of more than 13 weeks in any period of20 consecutive weeks, if the lay-off is
less than 35 weeks in any period of 52 consecutive weeks and,
(i) the employee continues to receive substantial payments from the employer,
(ii) the employer continues to make payments for the benefit of the employee under
a legitimate retirement or pension plan or a legitimate group or employee
insurance plan,
(iii) the employee receives supplementary unemployment benefits,
(iv) the employee is employed elsewhere dming the lay-off and would be entitled to
receivc supplementary unemployment benefits if that were not so,
(v) the employer recalls the employee within the time approved by the Director, or
(vi) in the case of an employee who is not represented by a trade union, the
employer recalls the employee within the time set out in an agreement between
the employer and the employee; or
(c) in the case of an employee represented by a trade union, a lay-off longer than a lay-off
described in clause (b) where the employer recalls the employee within the time set
ont in an agreement between the employer and the trade union.
Employer notice pel'iod
57. The notice oftel'mination under section 54 shall be given,
(a) at least one week before the termination, if the employee's period of employment is less
than one year;
(b) at least two weeks before the termination, if the employee's period of employment is
one year or more and fewer than three years;
(c) at least three weeks before the termination, lfthe employee's period of employment is
three years or more and fewer than four years;
(d) at least four weeks before the termination, if the employee's period of employment is
four years or more and fewer than live years;
(e) at least five weeks before the termination, if the employee's period of employment is
five years or more and fewer than six years;
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(I) at least six weeks before thc tcrmination, if the cmployec's period ofcmployment is six
years or more and fewer than sevcn years;
(g) at least seven weeks bctbrc thc termination, if the employee's period of employmcnt is
sevcn years or more and fewer than eight years; or
(h) at least eight wceks before the termination, if the cmployce's period ofemploymcnt is
eight ycars or more.
Pay instead of notice
~ An employer may terminate the employment of an cmployee 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 sum equal to the mnount thc employee would
have been entitled to receivc under section 60 had notice been given in accordance with that
scction; and
(b) continues to make whatever benefit plan contributions would be required to be made in order
to maintain the benefits to which the cmployee would have bccn cntitled had he or she
continued to be employed during the pcriod of notice that he or she would otherwise have
been entitled to receive.
[ conclude from the evidence that the employer advised the employees that the layoffs
were temporary but that they became permanent layoffs. At that point, Pioneer was
obliged to pay termination pay in lieu of notice in accordance with the provisions of the
Employmen/ StandaI'CI\' Act; 2000, set out above, 1 find the employer flliled to pay any
termination pay to any of the laid-off employees.
The union advised that it does not bave the precise information required to quantify the
amounts of termination pay owing. An additional complication is the order of the Pay
Equity Commission referred to above, which calls for adjm,tments retroactive to 1994
based on a proxy pay equity plan.
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Order
In light of the findings above, I make the following orders:
· Within 60 days of the date of this award, Pioneer Youth Services (Toronto) Inc.
shall provide to the Ontario Public Service Employees Union the following
inlormation for each member of the bargaining unit laid off in 2007:
date of hire
date of layoff
wage rate
hours worked and amounts paid in the 12 weeks prior to layoff
· Within 30 days of providing the information above, Pioneer Youth Services
(Toronto) Inc. shall pay all amounts owing in termination pay under the
Employment Standards Act, 2000, to each bargaining unit employe~ laid off in
2007, and shall advise the union of the amounts paid and the method of
calculation.
I will remain seized.
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Lome Slotnick, Arbitrator
February 4, 2009