Loading...
HomeMy WebLinkAboutGrievor 21-04-26IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION -AND- FAMILY AND CHILDREN’S SERVICES OF RENFREW COUNTY GRIEVANCE NO. 2019-0459-0008 AWARD Arbitrator: Laura Trachuk For Ontario Public Service Employees Union: Matthew Hrycyna For Family and Children’s Services of Renfrew County: Daryn Jeffries Written submissions were completed with respect to this dispute on April 20, 2021. 2 AWARD The parties resolved a grievance filed by the Ontario Public Service Employees Union (the “Union”) on behalf of MJ (the “Grievor”) by entering a Memorandum of Agreement (MOA). An issue has arisen with respect to the interpretation and implementation of the agreement. The MOA is dated June 29, 2020 and provides as follows: Whereas the Union and [MJ] filed a grievance dated September 25, 2019 alleging improper discipline; And whereas the parties are desirous of resolving this grievance as well as all matters related to [MJs] employment and resignation of employment from FCS Renfrew on a without prejudice or precedent basis and with no admission of liability or wrongdoing by any party; The parties agree as follows: 1. The Union and [MJ] agree that the above noted grievance is resolved. 2. [MJ] shall resign from her employment effective July 2, 2020 and shall sign the resignation letter attached as Appendix A in this regard. 3. FCS Renfrew shall continue to provide [MJ] with salary and benefit continuation (not including STD, LTD and Life, but including Employee and Employee pension contributions) until May 27, 2021. 4. In the event a new collective agreement is ratified by the Union, [MJ] shall also receive any wages increases derived from said collective agreement, including those applied retroactively, for the period from which they are applied through the duration of her salary continuation. 5. [MJ] shall execute the Release attached as Appendix B. 6. Arbitrator Trachuk shall remain seized regarding the interpretation and/or implementation of this Agreement. Attached to the MOA were two appendices. The first was a letter of resignation signed by the Grievor that provided: This letter is to advise that I resign from my employment with FCS Renfrew effective the date of this letter. 3 The second appendix was a “Final Release and Acknowledgment” also signed by the Grievor. It provided in part: …I do hereby acknowledge and agree that the payment is inclusive of all payments and obligations owed to me by the Employer including but not restricted to all payments and obligations owed to me pursuant to the collective agreement, any disability claim, benefits, the common law, the Ontario Employment Standards Act (specifically including, but not limited to, the vacation, termination and severance provisions of the ESA), the Ontario Labour Relations Act, the Ontario Occupational Health and Safety Act and the Ontario Human Rights Code. The parties have a dispute as to whether the Grievor will be entitled to Retirement Benefits after May 27, 2021. Article 24.05 of the collective agreement provides: 24.05 Retirement Benefits Employees with thirty years (30) of service or greater who take early retirement may purchase, 50% employee paid, single (not family) extended health and dental benefits only (consistent with the employer’s plan) up to age 65. The Union asserts that the Grievor has been employed by Family and Children’s Services of Renfrew County (the “Employer”) since 1988 so she had more than 30 years service when the parties negotiated the MOA. SUBMISSIONS The Union submits that the Grievor retired when she resigned from her position and is, therefore, entitled to Retirement Benefits pursuant to Article 24.05. The Union argues that “resignation” and “retirement” are not mutually exclusive and that every retirement is a resignation. It contends that it is the circumstances of the resignation that determines whether it is a retirement. The Union submits that the circumstances of the Grievor’s resignation indicate that it was an early retirement. It says that the Grievor is 61 years old and has no plans to find another position. The Union contends that the Grievor voluntarily withdrew from the job market. The Union argues, further, that the Grievor would have been eligible to retire in May 2021 and that the MOA bridged the gap to her retirement date. It says that it cannot, therefore, be said that she did not retire. The Union also notes that the 4 parties made efforts to preserve the Grievor’s retirement by continuing pension contributions and providing benefits. According to the Union, those terms were an effort to get the Grievor to the point at which retirement took over. It maintains that after the 11 months for which the MOA provides, the Grievor would no longer need those things from the Employer because her Retirement Benefits and pension would replace them. The Union submits that the ordinary understanding of the word “retirement” must include these circumstances in which an employee works for an employer for over 30 years then leaves at age 61 and relies on her pension after she stops receiving payment from her employer. The Union argues, further, that its interpretation of Retirement Benefits is not a risk to the Employer because such benefits are only available to employees who have more than 30 years of service and that is a high bar. The Union refers to the following award: U.S.W., Local 1-500 v. Syncreon/TDS Automotive Canada Inc., 2008 CarswellOnt 8479 (Hunter). The Employer argues that the MOA provides for: 1. The resolution of the grievance. 2. The Grievor’s resignation of employment. 3. Salary and certain benefit continuation until May 27, 2021. 4. The execution of a full and final release, including the release of any benefit claims. The Employer submits that the MOA did not provide for Retirement Benefits and did not say that the Grievor had retired from her employment. The Employer contends that the parties have not put any agreed facts before this arbitrator such as that the Grievor has more than 30 years of service, the date at which she could receive an unreduced pension, or that she has not sought to engage in other employment. The Employer asserts that the parties agreed that the only evidence provided would be the terms of the MOA. It submits, however, that if the information about the unreduced pension is to be admitted it should be noted that the Grievor was eligible to retire with a slightly reduced pension as early as 2019. The Employer argues that the word “retire” is not used in the MOA and the word “resign” means something different. It maintains that the words are not synonymous and that all resignations are not retirements. The Employer submits that the MOA, the case law, common knowledge and application all make it clear that resignations are different from retirements, particularly in labour law. 5 The Employer maintains that meaning must be ascribed to the word the parties chose to use in the MOA, specifically “resignation”. It asks for that meaning to be enforced. The Employer argues, in the alternative, that the Release disentitles the Grievor from Retirement Benefits. It says that the MOA set out the pay and benefits to which the Grievor was entitled and released the Employer from everything else including “benefits”. The Employer submits, for example, that vacation entitlement and mileage are not specifically mentioned in the MOA but there is no dispute that the Grievor is not entitled to those. The Employer refers to the following awards: Teck Metals Ltd. and USW, Local 480 (Hurd), 2016 CarswellBC 2566 (Moore); Durham Region District School Board and OSSTF (Jackson), 2013 CarswellOnt 630 (Carrier); Durham Board of Education v. O.S.S.T.F., 1991 CarswellOnt 7371 (Barrett); U.S.W., Local 1-500 v. Syncreon/TDS Automotive Canada Inc., 2008 CarswellOnt 8479 (Hunter); Thunder Bay (City) and Unifor, Local 229, 2020 CarswellOnt 17281 (Stout). The Union replies that the employment relationship was not cleanly severed in this case because the Grievor received a salary continuance, benefits and pension contributions until May 27, 2021, immediately after which she will receive her pension. It says that is consistent with retirement. The Union replies, further, that the Grievor “had 32 years of service, made inquiries and arrangements to preserve and maximize her pension by not cleanly severing her employment relationship and was of retirement age.” It submits that demonstrates that she had a bona fide intention to retire. The Union also replies that the Release does not override earned benefits. It asserts that Retirement Benefits are earned when an employee retires after 30 years of service and that the Grievor met that threshold. It says that the benefit crystallized the moment the Grievor retired. Finally, the Union replies that the eligibility to retire earlier with a reduced pension does not preclude a later retirement with an unreduced pension. DECISION I am seized with the interpretation and implementation of the Memorandum of Agreement. That is the extent of my jurisdiction. The parties stated that they agreed to an MOA because they were “desirous of resolving this grievance as well as all matters related to [MJs] employment and resignation of employment.” The Employer’s obligations to the Grievor are, therefore, now determined by the terms of the MOA. The Union contends that one of those terms is that the Grievor is, or will be, entitled to Retirement Benefits because the MOA provides for her retirement. The Employer responds that the MOA does not provide for the 6 Grievor’s retirement and that she is not entitled to Retirement Benefits. I find that it is not necessary to determine whether the Grievor retired or whether the MOA provided for her retirement because it specifically addresses benefits. In determining whether the Grievor is entitled to Retirement Benefits under the MOA I must consider the document as a whole as well as the words that the parties have used to give meaning to their intentions. They are presumed to have meant what they said. In Ontario Power Generation and Society of United Professionals (Weir), Re, 2020 CarswellOnt 15018 quoted in Thunder Bay (City) at paragraph 16, the Arbitrator put it clearly: 82. The fundamental rule of contract interpretation is that the words must be given their plain and ordinary meaning unless it is clear from the structure of the provision in issue read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd. Both the words that are there and the words that are not there may be significant, particularly when the parties (like the Society and OPG in this case) are sophisticated users of language. Words or phrases cannot be either inferred or ignored unless it is essential to the purposive interpretation of the contract - in this case the July 3, 2008 Minutes of Settlement. The parties agreed in the MOA that the Grievor would sever her employment by resigning. In consideration of the resolution of the grievance she received her salary and the continuation of some benefits until May 27, 2021. May 27, 2021 is, therefore, when benefit continuation ends. The parties were specific that the Grievor would continue benefits except for STD, LTD and Life until May 27, 2021. The parties did not provide that the Grievor would subsequently be entitled to Retirement Benefits. The Union argues that the MOA should be understood as bridging the Grievor to retirement with an unreduced pension and must, therefore, include the receipt of Retirement Benefits. However, that is not what the agreement says. It does not say that the Grievor is being bridged to retirement or to an unreduced pension. It does not use the words “retire” or “retirement” at all. It does say that the Employer “shall continue to provide [MJ] with salary and benefit continuation…until May May 27, 2021.” The fact that the Employer is to continue pension contributions may result in the Grievor receiving an unreduced pension but there is nothing in the MOA that says she will also receive Retirement Benefits. I cannot add an additional term to the parties’ agreement by reading into it that they agreed to bridge the Grievor’s benefits until she accessed her pension at which point she would be entitled to receive Retirement Benefits. I am seized with the interpretation and implementation of the MOA. That agreement does not include provision for Retirement or any other benefits after 7 May 27, 2021. The agreement says what it says and I cannot add to it. The grievance is, therefore, dismissed. April 26, 2021 _________________ Laura Trachuk Arbitrator 24 For all of the above reasons, I find that the Employer had just cause to terminate the Grievor’s employment. The grievance is dismissed. April 19, 2021 __________________ Laura Trachuk Arbitrator fu,tr