HomeMy WebLinkAbout2008-3125.Williamson.10-02-08 Decision
Commission de
Crown Employees
Grievance
règlement des griefs
Settlement Board
des employés de la
Couronne
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Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
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GSB#2008-3125
UNION#2008-0436-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Williamson)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Employer
BEFOREVice-Chair
Randi H. Abramsky
FOR THE UNION
Robin Gordon
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER
Brian Loewen
Ministry of Government Services
Counsel
HEARING
February 3, 2010.
- 2 -
Decision
[1]This case came before me under Article 22.16 of the parties? collective agreement,
and the parties agree that the decision ?shall have no precedential value??
[2]At issue is whether the grievor is entitled to severance pay under Section 64(1) of
theEmployment Standards Act as well as benefits under the parties? Memorandum of
Agreement entered into in regard to the closing of the Ministry?s facility at Rideau
Regional Centre. At the time of the closure in 2009, the grievor was employed under an
unclassified on-call contract by the Ministry of Safety and Security as a switch-board
operation/receptionist and had held that position since 2000. She also was employed, as
of 2006, by the Ministry of the Attorney General as a part-time flexible classified Court
Reporter, a position that was completely separate from her position at Rideau and
continued after the closure.
[3]Having carefully considered the specific and highly unusual facts of this case, I
conclude (subject to the Employer?s arguments concerning a potential exemption under
the Regulations) that the grievor is entitled to severance pay under Section 64(1) of the
Employment Standards Act, but is not entitled to benefits under the parties? Memorandum
of Agreement. Under the Memorandum of Agreement, the grievor is not entitled to
benefits because she did not ?exit the Ontario Public Service?, as required by that
agreement. But under the Employment Standards Act, there was a severance of ?an
employment relationship.? The Act is ambiguous as to whether the cessation of one
position with an employer like the Ontario government while maintaining another,
completely separate position, entitles the employee to severance pay for the loss of that
position. Under the specific facts of this case, I resolve that ambiguity in favour of
allowing the benefit. In the event that, eventually, the grievor may be entitled to
severance pay for the loss of her position as a Court Reporter, the Act contemplates an
off-set for severance already paid, and the Union agreed that the grievor?s credit date
should not include her Rideau service.
[4]This determination, as noted, is subject to the Employer?s argument that the grievor
is not entitled to benefits under the Regulations. If the parties? cannot resolve that issue,
another hearing date may be set. I will remain seized.
th
Dated at Toronto this 8 day of February 2010.
Randi H. Abramsky, Vice-Chair