HomeMy WebLinkAboutMichalska 10-07-08
\
:ll- 62 ccR - 04-f 2- 00 II
IN THE MATTER OF AN ARBITRATION
BETWEEN
RELIGIOUS HOSPITALLERS OF SAINT JOSEPH OF THE HOTEL
DIEU OF KINGSTON
("the Hospital" / "the Employer")
-AND-
ONTARIO PUBLICE SERVICE EMPLOYEES UNION
On behalf of its LOCAL 442 (NON-CENTRAL)
("the Union")
CONCERNING THE INDIVIDUAL GRIEVANCE of Bethmarie Michalska
("the Grievor")
Christopher Albertyn - Sole Arbitrator
APPEARANCES
For the Union:
Mary Mackinnon, Counsel
Bethmarie Michalska, Grievor
For the Employer:
Les Fonnan, Labour Relations Consultant
Scott MacInnes, Chief Human Resources Officer
Clarence Willms, Manager of Labour Relations & employee Benefits
Hearing held in KINGSTON, ONTARIO on June 28, 2010.
Award issued on July 8, 2010.
AWARD
The Issue
1. The Grievor was a 29-year employee of the Hospital when she received
notice oflayoff. Options were made available to her. She elected to take early
retirement, one of the options. The Employer then anticipated the date of the
Grievor's early retirement by making it effective two months earlier than the date
when she would have been laid-off.
2. The gtievance contests the Hospital's entitlement to accelerate the early
retirement date. It claims loss of earnings for the Grievor for the period betvyeen
the date the Grievor was given early retirement and the date on which she thought
she would take early retirement (the date of layoff in the layoff notice). The
Grievor also claims other damages.
3. The parties agree I should detennine whether the Hospital breached the
collective agreement by acting as it did. If so, I should remit the remedy to them
and remain seized.
2
4. In the event the question of damages is to be addressed, the Employer
challenges the Grievor's entitlement to claim any damages beyond a loss of
eammgs.
Facts
5. The parties agt'eed on the following facts:
1. In 2009, the Hospital was required by the Ministry of Health and
Long-Term Care for the Province of Ontario to balance its budget. All of
the areas of the Hospital were required to review their budgets to
determine where cost savings could be made.
2. The Mental Health Programs budget was required to be reduced
by approxinlately 10% or $1,000,000.00 on an annualized basis. The
bargaining unit in which Ms. Michalska is a member is a paramedical
bargaining unit represented by the Ontario Public Service Employees
Union (OPSEU) and is one of seven bargaining units in the Hospital.
The other bargaining units that affect the Mental Health Programs are a
Registered Nurses' unit represented by the Ontario Nurses' Association
(ONA); a Service unit represented by OPSEU and an Office and Clerical
unit represented by OPSEU.
3. The Hospital gave written notice to the Union of long-term
layoff on 2009 May 28. Attached as Appendix A is a copy of the notice
[tab 2]. The Union, at the meeting, was provided with four months
3
written notice of long-ternllayoffs. The letter provided no area of layoff,
number of employees to be laid off nor classifications or positions to be
eliminated. In the course of the meeting, the Hospital infonued the
Union that within the Mental Health Programs a Psychometrist and a
full-time Social Service Worker were going to be laid off.
4. On 2009 June 8, representatives ofthe Hospital met with Union
representatives. The Hospital informed the Union that Bethmarie
Michalska, a full-time Psychological Associate, would have her position
reduced from full-time to .5 FTE. This change occurred because the
Mental Health Program decided to reduce Ms. Michalska's hours in lieu
of laying off an employee in another bargaining unit due to patient safety
and effective health care concerns.
5. On 2009 June 9, the Hospital gave written notice to Ms.
Bethmarie Michalska that she would be reduced from a full-time position
to a .5 FTE on September 28. Attached as Appendix B is a copy of the
notice [tab 2].
6. Ms. Michalska is one of two Psychological Associates working
in the Hospital. She is the junior of the two Psychological Associates.
7. On or about 2009 June 15, Ms. Michalska notified the Hospital
that she wished to exercise her right to take early retirement. Attached as
Appendix C is a copy of her letter [tab 4]. Under the early retirement
provision of the collective agreement, Ms. Michalska was entitled to
receive twenty-six (26) weeks pay in addition to her pension. The cost to
the Hospital ofthe severance provision is $42,753.75. Attached as
Appendix D is a copy of the package calculations given to Ms.
4
Michalska and her directions with respect to how the package was to be
paid out [by hand, hard copy].
8. On 2009 June 29, the Hospital notified Ms. Michalska that it
accepted her request to take early retirement and informed her that her
last day of work would be 2009 July 31. Attached as Appendix F is a
copy of the notice [hard copy]. Attached as Appendix E [hard copy] is a
calculation showing what the additional cost to the Hospital and Ms.
Michalska would have been had she worked until 2009 September 28
and the cost to the Hospital had she worked \.mti12009 October 8.
9. A grievance was filed on 2009 July 2 [tab I].
10. Ms. Michalska worked until July 31st, when her employment
with the Hospital ended.
Collective ul!reement provisions
6. The relevant provisions of the collective agreement concerning layoff and
retirement are the following:
ARTICLE 3 - MANAGEMENT RIGHTS
3.01 The Union recognizes that the management of the Hospital and
the direction of the working force arc fixed exclusively in the
Hospital and shall remain solely with the Hospital except as
specifically limited by the express provisions of this Agreement.
Without restricting the generality of the foregoing and
5
maintaining the highest possible standard of service and
efficiency, the Union acknowledges that it is the exclusive
function and right of the Hospital to:
(a)
(d) Hire, assign, direct, classify, transfer, promote, demote, lay-off,
recall, retire, discharge and suspend or otherwise discipline
employees for just cause.
ARTICLE 17 - LAY-OFF AND RECALL
17.04
(b) An employee who is subject to a long-term layoff shall
have the right to either:
(i) accept the layoff; or
(ii) displace an employee who has lesser bargaining unit
seniority ...
(iii) opt to receive a separation allowance as outlined in
Article 17.10; or
(iv) opt to retire, if eligible under the terms of the
Hospitals of Ontario Pension Plan (HOOPP) as
outlined under Article 17.1 O.
17.10 (a) At the time of issuing notice oflong-tenn layoff pursuant
to Article 17.02(b), the Hospital will offer early retirement
allowance to a sufficient number of employees eligible for
early retirement wlder the Hospital's pension plan, in order
of seniority, to the extent 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 2 weeks salary for each year of
service, to a maximum ceiling of26 weeks salary.
6
The option of salary continuance will be made available to
those employees who indicate this preference.
17.1 0 (b) Where an employee has received individual notice of long-
tenn layoff under 17.02(b) such employee may resign and
receive a separation allowance as follows:
(i) Where an employee resigns effective within 30 days
after receiving individual notice of long-tenn layoff,
she or he shall be entitled to a separation allowance
of 2 weeks s.alary for each year of continuous service
to a maximum of 16 weeks pay, and, on production
of receipts from an approved educational program,
within 12 months of resignation will be reinlbursed
for tuition fees up to a maximum of $3,000.
(ii) Where an employee resigns later than 30 days after
receiving individual notice of long-term layoff, he or
she shall be entitled to a separation allowance of 4
weeks salary, and on production of receipts from an
approveQ educational program, within 12 months of
resignation will be reimbursed for tuition fees up to
a maximum of $1 ,250.
17.11 Any agreement between the Hospital and the Union concerning
layoff and recall will take precedence over the terms of this
Article.
7. In addition to the Gtievor's position being affected by the long-telm
layoff, she was eligible for early retirement, so the option of early retirement was
given to her and the parties accept that Article 17.10 applied to her. As a result,
the phrase, "following completion of the last day of work", in Article 17.10(a),
7
described when she was to receive her retirement allowance.
8. III the notice of layoff to the Orievor she was given the options provided
for under Article 17.02(b): accept the layoff; bmnp and displace an employee with
lesser bargaining unit seniority; opt to receive a separation allowance as outlined
in Article 17.10; or opt to retire, if eligible under the terms of HOOPP, as outlined
under Article 17.10. The notice to the Orievor required that she notify her
manager ill writing of her decision within 7 calendar days of the date of the letter.
She complied. She opted for early retirement.
9. The Orievor accepted early retirement on the assun1ption that her early
retirement would be effective on September 28,2009, the date of her anticipated
long~term layoff. In her written notice to the Hospital accepting the option, dated
June 15, 2009, she wrote: "I understand that my last day of work under this option
would be Sept. 28, 2009".
10. In response, by letter on June 26,2009, the Hospital informed the Grievor
that her last day of work would be July 31, 2009. That would be the effective date
of her early retirement. This meant that her anticipated early retirement date was
accelerated by two months, with resultant loss of income and benefits for that
8
period, including loss of conh'ibution to the pension plan for those nvo months.
The Union and the Grievor object to this acceleration.
Parties' submissions
11. Union counsel argues that the long-term layoff provisions recogtllze the
serious disruption layoffs have on a bargaining unit and on individual employees.
The provisions allow for alternatives to layoff to mitigate this disruption, like
early retirement and a severance allowance.
12. The Union suggests the option of early retirement is within the conh'ol of
the affected employee, and so falls to the employee to set the date of the
retirement. It argues that the Employer has no right to abbreviate the notice of
layoff just because the affected employee elects to retire.
13. The Employer opposes this view. It draws attention to the management
rights provision, in Article 3.01(d), that expressly gives the exclusive function to
management to retire employees. The Employer points out that the generality of
the management right is limited only by express provisions within the collective
agreement. The Hospital says there are no express provisions limiting
9
management's entitlement to retire employees.
14. The Union responds that the Employer's entitlement to retire an employee
is limited not only by the provisions of the collective agreement, but also by Bill
211, which amended the Ontario Human Rights Code with respect to age and
retirement. The Hospital points out the amendment limited only the Employer's
capacity to force retirement at a particular age.
15. The Union says one must look to the purpose of the layoff provisions - to
avoid mandatory layoff by offering attractive voluntary options that serve to
reduce the workforce without forcing employees into layoff. Early retirement is
an incentive offered by the Employer to attract employees so that others need not
be laid-off. In this context, accepting early retirement and the date of its effect
both fall within the employee's prerogative.
16. The Employer notes that Article 17.1 O(a) requires, at the time of the
notices oflayoffto affected employees, that those eligible are given the option of
taking early retirement. The two notices (to those to be laid-off and to those who
might elect to accept early retirement) OCCUl' at the same time. The purpose, the
Hospital suggests, is that the layoffs might be avoided if a sufficient nWllber of
10
those eligible for early retirement are willing to accept it. Clearly, their acceptance
would have to be earlier than the projected date of the layoffs so that the layoffs
could then be voided.
17. Once the employee has elected to accept early retirement, the Employer
says that, under its management right to detennine when employees retire, it has
the right to decide when the early retirement will occur.
18. The Union responds, if the Employer were entitled to set the retirement
date (which it disputes), in this case the Employer failed to convey an earlier date.
The Grievor accepted her retirement on the understanding that it was effective on
September 28,2009, and the Employer could not resile then from that.
19. The Hospital refers to St. Peter's Hospital v. Canadian Union of Public
Employees, Local 778, [2000] OJ. No. 1726 (Ont. S.C.J.), in which an arbitration
award was set aside as being patently unreasonable. The award had found that an
employee who elected early retirement was entitled to continue working for the 6-
month period ofthe layoff notice. The court's reasoned that the early retirement
option was entirely independent of the layoff and the employee had no entitlement
to continue working for 6 months, having elected to accept early retirement.
11
20. The Hospital argues that case has a direct bearing because, once the
Grievor accepted early retirement, the layoff provisions of the collective
agreement ceased to apply, and the retirement provisions became effect, subject to
theEmployer's overall control over the date on which the retirement became
effective.
Decision
21. Article 17 does not expressly address certain situations that arise in the
context of a long-tellli layoff. It has no provision as to when the employee must
respond after receiving the notice of such layoff. The Employer gave 7 days, 011
the assumption that this was sufficient time for the affected employee to weigh up
the options and to make a choice as to which to accept.
22. Other than in Article 17.1 O(b), which I will discuss, Article 17 also no
provision stipulating when each option will take effect. Presumably, if the
employee accepts the layoff, the layoff is effective ii'om the expiry of the 3 month
notice period. If an employee displaces an employee with lesser seniority, that
will presumably happen once the election is made, within the 3 months notice
12
period. The timing of the separation allowance option is specifically addressed in
Article 17.1 O(b). Employees who elect to receive the separation allowance are
encouraged to resign swiftly. If they do so within 30 days of getting their long-
term layoff notice, their separation allowance is substantially enhanced. If they do
not and they wait out the period of the 3-month layoff notice, then their separation
allowance is reduced.
23. What, then, of the timing of the option to retire? There is no inducement
that it occur early, as there is for the separation allowance on resignation. The
Union says, in the absence of specifying when the retirement is to occur, it is
effective from the date of layoff; the Employer says that it has the management
right to set the date once the employee has made that election.
24. The Hospital is correct that it needs to Imow, relatively soon after the
notices of layoff have been issued, who accepts early retirement. This is so that it
can rescind the layoff notices if there are enough senior staff eligible for early
retirement who want to take it. However, this point does not address when the
retirement is to be effective. Knowing at a relatively early date that some
employees will accept early retirement does not imply that their retirement must
occur at that early date. It could equally occur on the date of the projected layoff.
13
25. I fInel that, in the absence of a provision like that governing the separation
allowance (Article 17.1 O(b)), which stipulates different operative dates, the
Employer is, in general, entitled to stipulate the elate on which the early retirement
will be effective. This is because of the right the Employer has under Article
3.01 (d). However, when making the options available to the employee eligible [or
early retirement, the Employer must make clear when the option is effective,
26. With no clear date stipulated in the collective agreement for the early
retirement option, the information the Employer conveys to the affected employee
is important in determining the employee's "last day of work" (Article 17.1 O(a)).
If the Employer inselts the effective date of the early retirement option, that
would be the last day of work if the employee accepted that option. The Employer
may stipulate the date of the early retirement, but it must do so before the
employee makes the election. Otherwise, the employee would make their decision
on an uncertain, or possible false, assumption. The notice is meant to provide an
accurate description of the options available to an employee facing the prospect 0 r
ending or altering their employment by one method or another. Consequently, if
the Employer fails to include a different effective date for the early retirement
option, the employee can reasonably assume that the last day of work will be the
14
date of the layoff stipulated in the notice, as the Grievor did in this case.
27. I find therefore that, on the facts of this case, by not stipulating a different
date from the layoff date in the notice of layoff to tbe Grievor, the Employer was
bound by that date as the effective date of the Grievor's early retirement (her last
day of work). Once the Grievor had made her election on the basis of the
infonnation contained in the notice to her, the Hospital was not then at liberty to
anticipate the date.
28. In the circumstances, I find that the Employer violated Article 17 of the
collective agreement. I refer the remedy back to the parties for resolution. I
remain seized if they are not able to resolve the marter.
DATED at TORONTO on July 8, 2010.
,tt\lllJ\ r
Christopher J. Albertyn
Arbitrator