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HomeMy WebLinkAboutMatous/Van Leeuwen 09-03-26 1 IN THE MATTER OF AN ARBITRATION BETWEEN: THE COUNTY OF OXFORD (the "Employer") - AND- ONTARIO PUBLIC SERVICE EMPLOYEES' UNION LOCAL 114 (the "Union") AND IN THE MATTER OF THE GRIEVANCES OF KELLI MA TOUS AND PATRICIA VAN LEEUWEN - OPSEU # 2007-0114-0007 & 2007-0114-002 Louisa M. Davie Sole Arbitrator Appearances For the Union: Mihad Fahmy, Counsel For the Employer: Robert Atkinson, Counsel 2 Award The substance of the grievances filed by Patricia VanLeeuwen and Kelli Matous ("the grievors") revolves around a claim to severance pay and an assertion that the calculation of the amount of severance pay made in 2004 was incorrect. These grievances were heard in the City of London on March 25,2009. At the commencement of the hearing the parties filed the following agreed statement of fact: 1. Following the downloading of land ambulance services by the province to upper tier municipalities, the County of Oxford became responsible for land ambulance services in the geographic boundaries of the County effective August 1,2000. 2. Effective January 1,2002, the County commenced operating the land ambulance services directly. The two Employers who had been operating the service in the geographic boundaries of the County prior to that time were Tillsonburg District Memorial Hospital and Woodstock Ambulance Limted. 3. As part of the downloading process, the Province of Ontario flowed money through to the County of Oxford for severance costs. The money allotted for each individual employee was calculated by the Ministry of Health and Long-Term Care without any input from or involvement by the County. 4. As of January 1, 2002, when the County commenced operating the land ambulance service, the County became the successor Employer for, and OPSEU became the. bargaining agent for, the bargaining unit of paramedical employees under the Ontario Labour Relations Act. 1995. 5. The County made offers of employment to paramedics formerly with the Tillsonburg District Memorial Hospital and Woodstock Ambulance Limited. Both grievors were from Tillsonburg District Memorial Hospital and commenced employment with the County effective January 1,2002. There was no termination or severance of employment under the Employment Standards Act, 2000. 6. The parties then commenced negotiations for a first collective agreement. At mediation in 2004, the parties agreed on the language for severance pay which is in Article 17, and also agreed to a payout of the monies flowed through from the province to the County referred to in paragraph 3 above. The terms of that agreement were contained in a letter of understanding which has been replicated 3 at page 47 of the collective agreement expiring December 31, 2008. The parties agreed to a schedule "C" (not schedule "A" as stated in the letter of understanding) which contained the names of each employee, including the grievors, and a stated amount beside each name as per Ontario Ministry of Health and Long-Term Care Calculations. [I note parenthetically that the heading of schedule "C" was "Oxford County EMS - Severance Summary As per Ontario Ministry of Health and Long-Term Care Calculations]. 7. All employees on schedule "C" except Patricia V an Leeuwen were paid the amounts contained on schedule "C" and signed releases. The monies were paid out in 2004. 8. The amount of schedule "C" for the grievors is: Kelli (McBride) Matous Patricia (Walker)Van Leeuwen. $514.71 $152.73 9. The two grievances were filed in July, 2007, claiming entitlement to termination and severance pay arising out of the transition to employment with the County in 2002. The grievances allege that the amount in schedule "C" to the letter of understanding was a miscalculation, that the Letter of Understanding was a breach of the Employment Standards Act, 2000 and claimed severance pay in accordance with the Employment Standards Act, 2000. 10. Kelli Matous resigned her employment in February 08. Patricia Van Leeuwen remains an employee of the County. 11. A letter dated November 27,2006 from Tillsonburg District Memorial Hospital states that Kelli Matous was an employee of Tillsonburg District Memorial Hospital from August 24, 1987 to December 31, 2001 as a part-time Ambulance Attendant. Her rate of pay as of December 31, 2001 was $20.74. Ms. Matous worked a total of 11,493.00 hours over the course of her employment with Tillsonburg. 12. A letter dated January 18,2007 from Tillsonburg District Memorial Hospital states that Patricia VanLeeuwen was an employee of Tillsonburg District Memorial Hospital from December 7, 1992 to December 31, 2001 as a part-time Ambulance Attendant. Her rate of pay as of December 31, 2001 was $20.74. Ms. Vanleeuwen worked a total of 9314.25 hours of work over the course of her employment with Tillsonburg. The relevant provisions of the collective agreement under which these grievances were filed were negotiated into the first collective agreement between the County of Oxford 4 ("the Employer") and the Ontario Public Service Employees Union Local 114 ("the Union") applicable to the grievors, and have remained unchanged since that time. The applicable collective agreement provisions state as follows: Article 17 - Severance 17.01 Employees shall be entitled to severance pay in accordance with the Employment Standards Act 2000. For the purpose of this article, those employees who transitioned to the COlmty from either Woodstock Ambulance Limited or Tillsonburg District Memorial Hospital shall only have their service since August, 2000 recognized for the purposes of notice of termination, pay in lieu of notice and severance pay pursuant to the Employment Standards Act 2000 and the collective agreement. Appended and incorporated into the collective agreement is the following Letter of Understanding. Letter of agreement Re: Severance and Termination Pay The parties agree that the County shall pay to those persons listed on Appendix "A" (hereafter referred to as "the Employees") the sums of money found therein. The amount of these payments shall equal the amount of money received by the County from the Ontario Provincial Government for each employee to fund such payment as of August 1, 2000. Such payments shall be subjected to deductions required by law and the Collective Agreement. The payment of these monies shall represent the full and final entitlement for those Employees for all notice of termination pay, pay in lieu of notice, severance payor any other entitlement in respect of the Employee's employment and the change of that employment from either Woodstock Ambulance Limited or Tillsonburg District Memorial Hospital to the County whether pursuant to the Employment Standards Act, the common law or the previous collective agreements, formerly between either Woodstock Ambulance Limited and OPSEU or Tillsonburg District Memorial Hospital and CUPE. 5 OPSEU signs this letter of understanding on behalf of itself and all Employees listed in "Appendix A". These listed Employees will not file any grievance nor will OPSEU process to arbitration any grievance dealing with the severance or termination pay of these employees other than a failure to make the specific payments contained in Appendix "A" The payment of these monies shall be conditional on the Employee signing a release satisfactory to the County. Submissions of the Parties In the context of these agreed-upon facts and collective agreement articles counsel for the Union submitted that, having regard to the hours worked by the grievors, it was clear that there had been an error in the calculation of their severance pay. Through the filing of these grievances each sought to be paid the appropriate amount. Counsel maintained that as a matter of equity the grievors ought not to be adversely affected by the mistake in calculation made by others. Counsel argued also that parties can't contract out of the Employment Standards Act and, to the extent these parties agreed to something which is less than that to which these grievors were entitled, that agreement was null and void. Counsel for the Employer submitted that the language of the collective agreement was clear and dispositive of these grievances. Pursuant to the Letter of Agreement the grievances could not be processed arbitration. The reason for that, and the negotiated language found in Article 17.01, was because in 2004 the Employer was not obliged to pay severance pay but merely "flowed through" the sum of money provided for severance 6 liability by the provincial government. During their collective agreement negotiations the parties agreed to flow these government funds to employees although, under normal circumstances, the employees might not be entitled to severance pay, or, for that matter, might never become entitled to severance pay. The Employer did not make any of the calculations associated with the severance pay as it did not have the information necessary for that calculation. It relied on the government's calculations. In light of the Letter of Understanding and Article 17.01 it was clear that the parties agreed that this process satisfied the severance pay entitlement for pre-August 2000 service with the predecessor Employer. It would be inequitable and contrary to the specific provisions of the collective agreement to set aside or undermine that agreement by these grievances. Counsel for the Employer noted also that these grievances were filed in 2007, some three years after payments to employees had been made, and were untimely. In response to the Union's submissions regarding an inability to contract out of the Employment Standards Act counsel referred to section 6 of the Act arguing that, to the extent this was an agreement regarding severance pay, the statute recognized that the Union and the Employer could enter into an agreement regarding that matter. Decision I am sympathetic to the circumstances of the grievors. On the basis of the hours worked it would appear that the government made a mistake in calculating their severance pay entitlement up to August 2000. 7 Notwithstanding that sympathy it is clear that these grievances must be dismissed. In the circumstances of this case, and the clear and specific language of Article 17.01 and the Letter of Understanding, this Employer is not liable for any severance pay for pre-August 2000 service with the predecessor Employer. Given my view of the language I need not address the alternative submissions of the parties as they relate to arbitrability,the timeliness of the grievance, or the impact of section 6 of the Employment Standards Act. The grievances are dismissed. Dated at Mississauga this 26th day of March, 2009 ?4 AJ~ .