HomeMy WebLinkAboutGagliardi et al 18-12-06IN THE MATTER OF AN ARBITRATION
BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Union")
- AND -
MUNICIPAL PROPERTY ,ASSEWMENT CORPORATION
(the "Employer")
AND IN THE MATTER OF GRIRVANCES REGARDING SPECIAL COMPENSATION
ENTITLEMENT UNDER LETTER OF UNDERSTANnING ##1
SOLE ARBITRATOR Robert D. Howe
APPEARANCES
For the Union Ed Holmes, Counsel
David Lynch
David Taylor
John Paul Gagliardi
Danny TQma i
Tony Racioppo
Mary Stiliadis
Kelly Blakely
Leo Ferreira
Mack McLachlan
Jeff Leedale
John Odoom
For the Employer John Saunders, Counsel
Grant Nuttall
Natalie Slake
Edward Broderick
A hearing in the above Matter was held in 'Toronto, Ontario,
on November 15, 2018
A_W A R D
This award pertains to issues regarding entitlement
to "special compensation" under Letter of [understanding #1
(the "LOU") appended to the January 1, 2016 to December 81,
018 collective agreement (the "Agreement") bctween the Union
(also referred to in this award as "OPSEU"} and the Employer.
That LOU provides
This will confirm that full-time employees who
accepted employment with MPAC at the time of the
transfer, December 31, 1998, or who acQepted positions
with MPAC as a result of job postings for approximately
"29 Corporate Services positions" posted on or before
Decerfber 31, 1999 will receive a special compensation
entitlement equal to one (1) week per year of combined
service with the OPS and MPAC to a maximum of twenty-
six ( 6) weeks ending January 1, 2016 less one (1)
week per year of OPS service for which termination
or severance pay has been paid at the time of the
transfer, multiplied by the M2AC salary as of January
1, 2016. This includes any severance pair under the
Employment Standards Act. The payment of this money
shall satisfy MPAC"s obligations pursuant to LOU #1
notwithstanding the fact that the eligible employees
have not died or peen tex:minated. The money shall be
paid out pursuant to the options in the Memorandum of
Settlement dated June 17, 2016.
This entitlement also applies to full-time Ministry of
Finance employees who were on long-term disability
prior to December 31, 1998 who have returned to work
and comme-aced full-time employment with MPAC in the
bargaining unit on or before December 31, 1999 or who
were able to return to work on or before December 31,
1999 under a medically -approved rehabilitauion }grogram
which will lead to full-time employment shortly
thereafter.
Counsel agreed to argue the issues on the haeis of
facts stipulated during the course of their submissions, and
exhibits entered into evidence on the agreement of counsel.
Those facts pertain to examples provided by certain grievances
selected from the 21 grievances that are currently before me
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in these proceedings,
The Ontario Property Assessment Corporation, {110PAC"}
was created by statute on December 31, 1995 to perform
property assessment functions which had previously been
performed by the Ontario Ministry of Finance (the ,MOF,,). It
was subsequently renamed the Municipal Property Assessment
Corporation (r'MPAC"). Most if not all of the classified and
unclassified empioyccs who had been performing those functions
at the MOF were offered jobs with pPAc. Unclassified
employees were employed at the MOF through individual
contracts that ran from one specified date to another
specified date. Unlike classified employees, they had no job
security and their rights under the January 1, 1994 to
December 31, 1998 Ontario Public Service ("ops"} Collective
Agreement between OPSEU and the Management Board of Cabinet
(the "OPS Agreement") were very limited_ The 381 unclassified
employees who accepted employment with OPAL were hired as
temporary employees through individual contracts effective
from one specified date to another specified date, or for a
period of 'yup to one year's duration" from a specified
starting date. The approximately 1200 classified employees
who accepted employment with OPAC/MPAC were hired into
nontemporary positions.
Under the OPS Agreement, classified amplc�yees were
entitled to receive "termination pay", which was a severance
payment of one week per year of service for each year that
they work(�d beyond five years of service. Unclassified
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cmployces had no entitlement to that payment.
The CAPS Agreement also contained provisions regarding
the Conversion of unclassified positions to classified
pos tions, including Article 31.15.1.1, which provided as
follows:
Effective upon the date of ratification, wh.erG the
same work has been performed by an employee in the
Unclassified, Service for a period of at least two ()
consecutive years, except for situations where the
unclassified employee is replacing a classified
employee on a leave of absence authorized by the
Employer or as provided for uDder the Collective
Agreement, and where the ministry has determined that
there is a continuing need for that work to be
performed on a full-time basis, the ministry shall
establish a position within the Classified Service to
perfoxm that work_
To facilitate an orderly transfer of the duties and
responsibilities of property assessment functions, the MOF and
OPAC entered into a Memorandum of Understanding which included
the following items -
ITEM 6: TRANSFER OF ASSETS
6.1 The Ministry shall transfer all assets ownc-d
by the Government of Ontario at the time of
transfer, located in regional assessment
office locations occupied by the Property
Assessment Division (PARI at no charge to
OPAL. The Ministry shall transfer to OPAL
all office supplies and cquiprn(�nt owned by the
Govcrnment of Ontaxio at the time of transfer
and used by PAD at the head office in Oshawa
except the desks, tables, chairs, filing
cabinets, bookcases and phones.
ITEM 16: SPECIAL PROVISION FOR CORPORATE SERVICES STAFF
16.1 OPAL recognizes that up to 29 positions
(F.T.E.$) in the Mirlistry's Corporate Services
Division (Human Resources, Information
Technology, Corporate Planning and Finance,
Audit Services) and Freedom of Info=ation and
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Privacy Office (collectively referrers to as
"Corporate Services positions") may he
impacted by the transfer of the PAD_
Therefore, if, between the date of the signing
of this memprandum and December 31, 1999, OPAC
establishes the need for and conducts initial
corapetitions to fill such Corporate Services
positions, it will include i -a its search area
for the initial competitions, those employees
who were employed in the Corporate Services
Division on the date of the transfer (12:01
a.m. Dacc�mber 31, 1998) and who remain
similarly employed at the date of the initial
competition.
If Ministry Corporate Services staff are
hired by OPAL directly as a result of the
foregoing paragraph, such employees will be
offered employment on the teams and conditions
and employee benefits as if they had leen PAD
Employees who became OPAL employees on the
transfer date. This applies only to the
initial competition and to no more than 29
positions. OPAC's search obligation is
satisfied by providing the Ministry with a
copy of the appropriate job posting. Nothing
herein obligates OPAL to hire anyone or use
any particular selection criteria.
A letter of understanding providing for 'Special
compensation entitlement on termination" was included in the
first collective agreement entered into by OPAL and OPSEU, and
has formed part of each of the collective agreements which
OPAL/MPAC and OPSEU have entered into since that time. The
letter of understanding initially provided that the special
compensation would be received "on termination or death".
''hat resulted in employees who had not reached the 26 week
maximum continuing to accumulate additional weeks of
entitlement. Powcever, during the course of bargaining the
January 1, 2016 to December 31, 2018 collective agreement, the
parties agrc�,-d to delete that phrase and to add the words
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"ending January 1, 201611 after the phrase "to a maximum of
twenty-six (26) weeks". That charge was made because the
Employer had an interest in stopping that accumulation and
because the Union had an interest iii having that compensation
paid prior to the death or termination of its members, some of
whom had already reached the 26 week maximum.
To implement those changes, MPAC calculated and paid
out special compensation to the employees whom it determined
to be entitled to receive it_ However, forty employees filed
grievances because they were of the view that MPAC had erred.
Although only 21 of those grievances are currently before rye,
the parties hope that the other 19 grievances can also be
resolved through these proceedings.
In a previous case between OPSEU and OPAL regarding
temporax employee's eligibility to receive special
termination payments under the LOU, the majority of a Board of
,Arbitration which I chaired Qonc:luded in an award dated April
30, 2001 (the 112001 Award"), that OPAC's temporary employees
were not entitled to receive compensation under the LIQU
because the "Special compensation entitlement" for which it
provided fell within the ambit of the term "benefits" in
Article 5.02 of the collective agreement between OPSEU and
OP,AC, which provided:
Temporary employees shall receive 10 percent of
base wages in lieu of holidays, vacations and
benefits and in lieu of pay therefor.
Article 6.02 of the parties' January 1, 2016 to December 31,
2018 collective agreement contains identical language.
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Since that award was issued, OFAC/MPAO has
administered the LOU in a manner that is consistent with it.
Any classified employee of the MOF who carne over to a
nontemporary position at OPAC/MPAC at the time of the transfer
continued to accumulate service for purposes of special
compenoation entitlement under the LOU. Any unclassified
employee of the MOF who came over to OPAO/MPAC: as a temporary
employee and subsequently left the employ OPAC/MPAC did not
rcccive any special compensation under the LOU_ There have
been at least 205 employees to whom this applied.
Grievance of David Taylor
Mr. Taylor was a classified employee of the MCF from
1986 until August 31, 1989, when he resigned to pursue a
university education_ While pursuing that education, he
worked for the MOF during the Summers as an unclassified
employee working full-time hours. His employment contracts
for those periods of unclassified employment provided for "Elay
in lieu of employee benefits [in] an amount equal to 2t of
basic hourly rate for all hours worked exclusive of overtime".
He completed his university education in 1995 and -qubsequentl
returned to work for the MOF, initially as an unclassified
employee and thea as a classified employee with an OPS
continuous service date of June 3, 1995. He remained a
classified employee of the MOF until December 31, 1998, when
he accepted employment with OPAC/MPAC as a nontemporary
employee. At the time of transfer, he did not receive any
termination or severance pay for the period between his
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continuous service date of June 3, 1996 and his separation
date of December 30, 1998, because that period of two years
and seven months constituted less than the five years of
service as a classified employee required for entitlement to
it under the OPS Agreement_ The previous periods that he had
worked as an unclassified employee were not included in the
MOF's calculation, nor were they included in MPAC's
calculation of hie special compensation enti.tl.c-rneat under the
MQF_ In calculating that entitlement, MPAC also used the June
3, 1996 dale, in accordance wiuh its consistent practice (over
the last nineteen years) of using employees' OPS continuous
rervlce date at the time of transfer in calculating special
compensation entitlement under the LOU, and of not including
any unclassified service time in that calculation.
Through his grievance, Mx. Taylor claims that his
entitlement tv special compensation under the LOU should have
been calculated from Febxuary 17, 1992, which is the start
date of his membership in the Ontario Public Service Employees
Union Pension Plan (the "OPSEU Pension Plan")f as specified in
the Special Deferred Pension Certificate that was provided to
him by the OPSEU Pension Trust after he left the OPS and
became an employec of OPA /MPAC. Thus, he claims that the
calculation should have included an additional four years and
three months of service.
The February 17, 1992 start date of Mr. Taylor's
membership in the OP EU Pension Trust is earlier than his CPS
continuous service date of June 3, 1996 because Mr. Tayloz
7
purchased for pension entitlement purposes all of the time
that was eligible for pension, entitlement service credit
during the period that he was a university student.
Grievance of Jeff Lecda3,�,
Mr. Leedale's grievance is similar to that of Mr_
Taylor. The compensation that he received under the LOU was
calculated on the basis of 19.5 years of combined service with
the MOF and. OPA.0/MPAC- He claiRts that it should have included
the periods in 1992 and 1993 duxirig which he worked for
OPAL/MPAC on a contract, basis as a temporary employee.
Accordingly, be seeks to have it calculated on the basis of
20.917 years of combined service.
Grievance of Steven ,thea
Mr. Shea was an unclassified employee with the MOF in
1998. At the Decernbex 31, 1998 time of transfer, he accepted
employment with OPAL/MPAC as a temporary employee. As a
result of being the successful candidate in a job competition,
he was appointed to a nontemporary position on a probationary
basis, effective June 30, 1999. He resigned later that yeax
but subsequently returned to the employ of OPAL/MPAC ten years
later. He claims entitlement to special compensation based on
his accumulated years of service with the MOF azid OPAC/MPA+C.
Grievance of John Gagliardi
Mr. Gagliardi commenced employment with the MOF ori
May 5, 1997 as an unclassified employee and worked full-time
hours iri that capacity until December 31, 1998, when he became
a temporary employee of OPAiCIMPAC working full-time hours as a
8
result of his acceptance of a temporary employment contract
with OPAL/MPAC offered to him on Decembex' 15, 1998. His
grievance is an example of a group of grievaznces through which
persons who worked full-time hours for the MOF as unclassified
employees and then became temporary employees working
full -tire hours for OPAL/MPAC as of December 31, 1998, claim
special compensation entitlement under the MOU on the basis of
their combined sez:vice with the MOF and OPAC/MPAC.
xzevance of Jennifer Bouchard
Ms. Bouchard was employed by the MOF as an
uriclassifled employee working full-time hours f-rom August 6,
1996, until December 31, 1998, under a series of consecutive
employment contracts. On December 31, 1998, she became a
temporary employee of OPAL/MPAC working full-time hours as a
result of her acceptance of an "cuployment contract of up to
one year's duration" that wa8 offered to her on December 15,
1998. In the spring of 1999, she obtained a ncntn poraxy
position with DPAC/MPAC as an Assessment Field officer,
effective May 3, 1999, as a result of being the successful
applicant in a competition for that position.
Grievazxce of Bornadette Macri
On November 1, 1998 Ms. Macri (whose name at that
time was Bernadette Zenko) commenced employment with the MOF
as a quality assurance clerk working full-time hours in its
Property Assessment Division urnder a contract of employment,
which specified that she was "appointed to the unclassified
service", effective from November 1, 1998 and to December 31,
V
1998. Her duties and responsibilities were to perform a
quality control assessment function by checking the
evaluations clone by other property asse88ment employees.
Although there was initially a dispute regarding whether she
was workirig in the MOF's Property Assessment Division or in
its Corporate Services Division, during the course of his
reply submissions Union counsel advised that the Union does
riot dispute that she was working in its Property Services
Division at the time of transfer_ She then accepted a
position as a temporary employee under a contract with
OPAOfMPAC. As a result of her completion of heic probationary
period while on contract, her employee status was subsecentl
changed to that of a nontemporary assessment field officer,
with May 17, 1999 as the date of her ",Appointment to
Clas8ified Staff" (as indicated by the OPAL "CHANGE IN
EMPLOYEE STATUS" form included in Tab 10 of the exhibit book).
Grievance of John Odoom
Prior to December 31, 1998, Mr. Odoom was an employee
of Gear Canada Limited {"Geac""} who performed information
technology services for the MOF. He was impacted by the
aforc-mentioned transfer of property assessment furnctions from
the MOF and OPAL because following that transfer there was no
longer any need for those services to be provided to the MOF.
He applied for a position with OPAL through a job posting and
was hired by it as a Technology Infrastructure Analyst on
February 1, 1999 through a temporary contract with a
termination date of July 30, 1999. He worked full-time hours
10
in that temporary position_
Grievance of Christian .Stoeken
Prior to December 31, 2018, Mr. Stoeken was employed
by the MOF as a full-time unclassified employee. He was hired
by OPAO as a full-time temporary employee and subsequently
bcc'ame a full-time nontemporary employee. Re claimG
entitlement to special compensation under the LOU because it
stipulatcs that the special compensation for which it provides
llincludes any severance pay under the Employment Standards
Act". In support of that claim, he relies upon section 65(2)
of the Act, which provides:
All time spent by an employce in the employer's employ,
whether or not continuous and whether or not active,
shall be included in determining whether he or she is
eligible for severance pay under subsection 64{1} azad
in calculating his or her sevearaace pay under
sub5ection(1).
Collective Agreement Excerpts
In addition to the above -quoted LOU, during the
course of argument reference was also made to the following
provisions of the Agroomcnt:
ARTICLE 6 - TEMPORARY EMPLOYEES AND STUDENTS
6.06 Whore the same work has been porfc}rrnUd by a
temporary employee for arty period of at least
eighteen (18) consecutive months (except for
situations where the employee is replacing a
regular employee on a leave of absence authorized
by the Employer or as provided for under the
Collective Agreement) and where the Employer has
determined that there is a continuing need for
that work to be performed on a full-time basis,
the Employer shall establish a regular position to
perform that work.
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5.08 Where a temporary employee has been released from
their contract betorc thcir eighteen (18) months
and rehired as a temporary employee within four
(4) weeks of their last day worked, the period of
absence in between shall not be con8idercd a break
in services. That is, the period of the first
temporary employment and the period of absence
shall be included when determining the li�iigth of
continuous service.
ARTICLE 12 - OUTSIDE BARGAINING UNIT POSITION
AND SENIORITY
12.01 Seniority, as referred tc) in this Agreement,
shall mean length of ccntiinueus scrv'ice. All
employees, seniority dates shall be the earliest of:
a) the seniority date recognized by the
ov<�rnmcnt of Ontario for employees who were
employed by the Ministry of Financc
immediately prior to becoming employees of the
-Employer on December 31, 1998; or
h) the date the employee was last hired by MPAC.
For greater certainty this shall include all
continuous temporary and permanent service.
Reference was also made to Letter of_ Understanding
47, which provides as follows regarding "Seniority - temporary
employees":
This will confirm certain understandings regarding the
seniority of persons who were classified as temporary
employees by MFAC ori Decsmbex 31, 1998, and who had
unclassified service with the Ministry of Finance
immediately prior to and contiguous with that date_
Subject to the provisions of this letter, it is agreed
that such persons will he credited with seniority, for
the cele purpose of vacation., layoff, recall and Lbe
filling of vacancies, for continuous service with the
Ministry of Finance immediately prior to and contiguous
with Decembe.r 31, 1998_ It is understood that this
will only be done once the employees arrange for the
provision of records from the Ministry of Finance that
confirm the dates of such service_ The employee will
have until December 01 [sic], 2006 to furnish the
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records. The effective date of any change iri the
seniority date will be January 15, 2007,
it is understood that there will be no retroactive
impact of the recognition of serxi.ori.ty pursuant to this
letter, and the provisions of this letter are otherwise
subject to the provisions of Article 12.01(b).
Summary of Union Counsel's Submissions
The LOU io unambiguous; it contains plain words that
are used in their ordinary sense, so there is no need for
extrinsic evidence. It specifies that full-time employees
with the MOF who accepted employment with MPAC at the time of
transfer, c)r who accepted positions with MPAC as a result of
job postings for approximately 29 Corporate Services Positions
posted on or before December 31, 1989, are entitled to receive
the payment for which it provides.
There is no diapute that Mr. Taylor and Mr. Leedale
were full-time employees entitled to receive special
cpmpensation under the LOU. The dispute regarding those two
grievors is what is to he included in the calculation of that
compensation. The LOU provides for patent of compensation
equal to one week per year of combined service with OPS and
MPAC, to a maximum of twenty-six weeks. it does not require
that the servioo he continuous or unbroken; the only qualifier
i recombined ervice'r. MPAC calculated their entitlement on
the basis of their continuous or unbroken service, and dict not
loaf at their entire period of employment.
when the parties meant continuous servicer they used
language such as "consecutive months", as exemplified by
Article 6.06r or "continuous service", as exemplified by the
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first sentence in Article 12.01 and the last sentence in
12.01(b). Given that they used such language in various
places in the Agreement, their use of the phrase "combined
aervice" in the LOU indicates that they intended some other
entitlement or outcome; "combined" must mean something
different that 11continuous".
The employees in the group of grievors exemplified by
Mr. Gagliardi are all entitled to special compensation under
the LOU. They were all full-time employees of the MOF who
became fuii-time cmploy4�es of OPAC/MPAC on DeceiTber 31, 1998.
The fact that they were unclassified employees with the MOF
who became temporary employees with OPAL/MPAC does not deprive
them of that entitlement, as the language of the LOU merely
requires that they were "full time employees who accepted
employment with MPAC at the time of transfer". It does not
require them to have been classified employees, nor cions it
contain any language which excludes unclassified ErnployeeE
from its scope. The Employer is seeking to have ymu modify
the LOU by implying qualifiers which do not exist in it. It
simply says "full time employees". That phrase is not defined
in the LOU or anywhere else in the Agreement. Consequently,
it must be given its plain meaning. A full-time employee is
commonly understood to mean an employee who works full-time
hours.
Ms_ Bouchard is also entitled to special compensation
under the LOU on the same basis as Mr. Gagliardi.
Alternatively, if the argument advanced on his behalf is not
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accepted, her entitlement to special compensation under the
LOU can be found on the ba: is that prjox to December 31, 1998,
she should have been eoovex`ted under Article 31.15.1.1 of the
OPS Agreement from an unclassified position to a classified
position as a result of having worked for more than two
consecutive years as an unclassified employee.
The grievors' entitlement to special compensation is
also supported by the fact that while they were employed by
OPAC/MPAC, their seniority was backdated to their start date
with the MOF. OPAC/MPAC's recognition of their MOF tart date
as their seniority date serves as a legal trigger that
supports their• entitlement under the LOU.
Ms. Maori and Mr. Odoom are both entitled to special
compensation under the LOU because they each accepted
positions with OFAC/MPAC as a result of job postings for two
of the approximately 29 "Corporate Services positions" that
were posted before December 31, 1999. Although Mr. Odoom was
not an employee of the MOF, he performed services for it and
was impacted by the transfer of property assessment functions
from the MOF and OPAC because following that tra.nsfe�7 there
was no longcr any need for those services to be provided to
the MOF.
rix. Stc�eken claims entitlement to special
compensation under the LOU on the basis that it stipulates
that the special compensation for which it provides "includes
any severance pay under the Employment Standards Act"_ His
argument is that because he was an employee of the MOF prior
1s
to December 31, 1998, for the purposes of the Employment
,Standards Act hi� was art employee and it does not matter
whether he was classified or unclasiiicd, nor whether he was
full. -time or part -times, because it is all employment under
section 65(2) of the Act. He alsc argues that by referring to
the pio mcnt Standards Act, the LOU imports those
entitlements into it_
This case is different from the case that was dealt
with in the 2001 Award because we are focusing specifically on
the words "full-time employees". we do not need to look at
whether they were classified employees or unclassified
employees because the LOU does riot draw that distinction_ The
grievors were full-time employees and had their seniority
recognized by MPAC. That is different from the previ=ease.
Irx addition to the 2001 Award, during the course of
his submissions Union counsel referred Co B�Own & Beatty,
Canadian Labour Arbitration, paragraphs 4:2000 and 4:2140;
Re Nova ,Scotia Department of Transporta tion) 8 n C. U. P.I E. ,
Loc. 1867 (1990), 12 L.A,C. (4th) 352 (Veniot); Re Cuclph
General Hospital and ONA (2012) , 226 L.A.O. (4th) 24 (Stout) ,
U.P.C'.W., Local 401 v. Richards5on Oilseed Ltd. (2012), 219
L_A_C. (4th) 433 {Wallace) j and OP 'EU and The Crown in bight
Of Ontario (Ministry of Finances), decision dated July 29, 2004
re GM ##2002-2394 (Dissana ake). He also referred to the
Oxford Dictionary, which defines "full-time" as "occupying or
using whole of available work ng time".
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Summary of Employer Counsel's Subrrrissions
Under the OPS Agreement, classified employes were
entitled to receive a Peverance payment of one week per year
of service for each year that they wo-rked beyond five years of
service, but unclassified employees had no entitlement to that
payment. The purpose of the LOU was to recognize prior
service with the OPS under certain circumstance;. What it and
the 2001 Award said was that if employees had such entitlement
at the time of the transfer, they could keep it, but if thoy
did not have it at the time of the transfer, they could not
generate entitlement to it after the transfer.
During the last round of bargaining, the only chane
that the parties made to the LOU was to provide for it to bE�
paid now rather "on tezminatign or death's.
The 2001 Award found that the "epecial compensation
entitlement" provided by the LOU was one of the "benefits"
covered by what gra: then Article 5.02, which is now Article
6.02 of the Agreement, and that temporary employees were
therefore not entitled to zeceive it. MPAC's position is that
if an employee was not entitled to it at the time of the
transfer, they cannot possibly have it now because the
language has not r -hanged, the intention has not changed, and
the interpretation certainly should not change.
Since that award was issued, OPAC/MPAC has applied
the LOU in a manner absolutely consistent with what it said.
Any classified employee of the MOF who came over to a
nontemporary position at OPAC/MPAC aL the time of the tra-nsfer
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continued to accumulate servicra for purpo8es of special
compensation entitlement under the LOU_ ,Any unclassifi.ed
employee of the MOF who came over to OPAC/MPAC as a temporary
employee and subsequently left the employ OPAC/MPAC did not
receive any special compensation_ That has been cleax' and
consistent siiRce 1999. There are at 12a2t 205 pooplc to whom
this applies, and none of them raised a complaint or filed a
grievance. If there is any ambiguity i.n the LOU, the past
practice between the parties over nineteen years has been to
interpret it ars that manner..
The Employer's position is reinforced by what the
parties agreed to in LOU 47. it very specifically deals with
the issue of the seniority to be credited to pCrsons whom the
Employer hired as ternporaxy employees on December 31, 1998,
and who had unclassified service with the MOP immediately
prior to and contiguous with that date. It records the
parties, understanding that such persons will be credited with
seniority "for the sole purpose of vacation, layoff Arid the
filling of 'Vacancies". If the parties had also warted to have
that seniority credited to those employees for the purposes of
Letter of Understanding #1, they could have included a
reference to it, but they did not do so.
The grievors exemplified by Mr. Gagliardi, who worked
full-time hours for the MOF as an unclassified employee and
then became a temporary employee working full-time hours for
OPAC/MPAC as ot December 31, 1993, are not entitled to special
compensation under the MOU because they did not have any
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entitlement at the time of the transfer and caii-not have it now
because there iG nothing that gives it to them.
Cir. 'Taylor received special compensation under the
LOTS in the amount to which he was entitled biased iipon his
combined sezvice as a classified employee with the OPS and as
a nonternporary employee with OPAL/MPAC. On the Deeamber 31,
1988 date of transfer, Mr_ Taylor had two years and seven
months of service, based upon his OPS continuous service date
of June 3, 1996. In calculating the amount of special
compensation to which Mr. Taylor was entitled tinder the MOU,
MPAC quite properly used that date, in accordance with its
consistent practice over the last nineteen years of using
employees' OPS centin=8 service date at the tirnEt-, of transfer
in calculating that special QQmpensation entitlement under the
LOU, and not including any unclassified service time in that
calculation.
Mr. Taylor's purchase of all of the time that was
eligible for pensionable service credit under the OPEU
Pension Plan during the period when he was a university
student gave him additional pensionable service credit for
purposes of that Plan, but did not give him any additional
service for purposes of the LOU. Those are two different
numbers for two different purposes. The phrase "combined
service" in the LOU means that OPS service is to be joined
together with OPAL/MPAC service. The service that Mr. Taylor
had at the time of transfer was the Lime from June 3, 2006,
nothing more.
19
As is the case with all of the grievors except Mr.
Taylor and Mr. Leedale, Mr. Shca is net entitled to any
special compensation under the LOU because he was an
unclassified employee of the MOF who came over to OPAL/MPAC on
December 31, 1998, as a temporary employee. He subsequently
resigned in 1999 and returned ten years later. Consequently,
his seniority only gees Lack to the date in 2009 when he was
rehired, as that is "the date the employee was last hired b
MPAO°, as specified in Article 12.01(b) of the Agreement_
Ms. Bouchard was one of the 381 unclassificcd MOF
employees who accepted a temporary employment contract with
OPAOfMPAC. OPAC/MPAC took her as she carne to it, namely, as
an unclassified employee. She now claims that she should have
been converted under Article 31.14.1.1 of the OPS Agreement
from an unclassified position to a classified position as a
result of having worked for more than two consecutive years as
an unclassified employee. However, that is not the test,
Article 31.13.1.1 required the MOE-' to establi h a classified
position where the came work, had been performed by an
unclassified employee a period of at least two consecutive
years and where the MOF had determined that there was a
c ontiriuing need for that work to be performed on a full-time
basis. If Ms. Bouchard wanted to file a grievance alleging
that both of those requirements had been met, the time to do
so was in 1998. You do not have jurisdiction to decide that
matter.
Ms, Macri did not hold one of the approximately 29
0
Corporate Services positions referred to in the LOU- She was
an unclassified quality assurance clerk working full-time
hours in the MCF's Property Assessment Division prior to
accepting a temporary ppsitjon with OPAC/MPAC at the time of
transfer.
[fir. Odoci'fL worked for Gcac and wa; novcr an employ
of the MOF. He has no entitlement under the LOU because had
no OPS service and was therefore not a full-time employee of
the MOP who accepted a position with MPAC as a result of a job
posting for one of the apprQximately 29 Corporate Scrv'ices
positions posted on or before December 31, 1999.
Mr. Stoeken's creative argument regarding the
Ehpdoyment Standards Act cannot succeed because that Act did
not apply to the Crown at the time of the transfer, and
because section 65( ) of that Act applies to blocks of service
with an employer; it docs not address service with two
employers.
During the course of his submissions, counsel for the
Employer also referred to Brown & Beatty, Canadian Labour
Arbitration, paragraph 2:3220; Re Essar Steel Algoma Inc. v.
V& K , Local 2251 (2008), 177 L.A_C_ (4th) 183 (Stout) Re
Toronto ,District .School Board and Mkintenance & Canstruction
.Skilled Trades Council, 2014 CarowellONT 11113 (Tacon) ; and Re
Peel Regional Paramedical Services and OPSEU, Local 277
( orz nski), 2014 CarswellOnt 11166 fMarcotte).
.Summary of anion Counsel's Reply Su mi88inn8
When parties enter into a collective agreement, it is
21
open to them to give employees something new. Through the
LOU, the parties agreed to give the special compensation
entitlement to "full-time employees who accepted employment
with MPAO at the time of the transfer". That is what gives
entitlement to the grievors in the group exemplified by Mr.
Gagliardi,
Mr. Taylor's entitlement goes back further than his
continuous service date of June 3, 1995, becau8e the LOU does
not require continuous service. It should have been
calculated from February 17, 1992, so as to include within hi$
"combined service with the OPS and MPAC" his full-time OPS
service during the summers of the years in which he was
pursuing his university education.
Ms. Bouchard shouidbe found to have been entitled to
be converted under Article 31.15.1.1 of the OPS Agreement from
an unclassified position to a cia853itied pcnition because her
situation satisfies both of the requi7cemerxts of that
provision. As an unclassified employee, she performed the
same work for the MOF for a period of at least two years. The
continuing need for that work to be performed c)n a full-time
basis is established by the fact that after she had been
employed by the MOF as an unclassified employee for a period
of two years, shfit continued to work as an unclassified
employee for the duration of her employment with the MOF up
the December 31, 1998 transfer date.
Deci si ars
As indicated above, in the 2001 Award issued in the
22
previous case between OPEU arid OPAL' regarding temporary
employee's eligibility to receive special termination payments
under the LOU, the majority of a Board of Arbitration which I
chaired concluded that OPAC's temporary employees were riot
entitled to rec-eive cvmpezisation under the LOU because the
„Special compensation entitlement" for which it provided fell
within the ambit of the term "benefits" in what was then
Article 5.02, which is now Article 6.02 of the Agreement_ The
rationale for that conclusion is set forth as follows in the
majority award (at pages 11-16):
Having duly considered the able submissions of
counsel, we have concluded that temporary employees
whose employment contracts expire through the effluxion
of time arc not entitled to receive compensation under
the Letter of Understanding, because the "'special
cQmpeT�sation entitlement" provided by the Letter of
Undertarnding is a "benefit"" within the meaning of
Article 5.0 of, the Agreement, which provides:
Temporary employees shall receive 10 percent of
base wages in lieu of holidays, vacations and
benefits and in lieu of pay therefor_
In Tox7orxto General Hospital and Ontario Nurses'
Association (Paur 7'C irr Nu- ,3es g-cievalice) , suipr ,
arbitrator Brawn found holiday pay to be a "fringe
benefit" covered by the e_ctra 14% included in the
regular part-time nurses' hourly salary rate as a
"percentage in lieu of fringe benefits' In reaching
that conclusion, he wrote, in part, as follows (at page
13 ) .
There is no mystery as to what is meant by a
fringe benefit in the industrial relations
corateyct, it is :imply part of ccmpeneatioTx for
work which is outside of direct salary or wages
paid but attached to such payment by way of
additional compensation in the employment
relationship directly relating to the hourly
salary Qr wades paid for work performed. Pay
for statutory holidays arises as a result of
that relationship and is a paid benefit in
addition to salary....
23
A similar conclusion was reached by arbitrator
Barton in Family services of Hamilton Wentworth and
OPSEI7 Local 216(holiday a rievance of Teri
chwendinan), s_.unra, in which statuLory holiday pay was
found to be included in the percentage of their wage
rate (10) which, in accordance with the provisions of
the applicable collective agreement, part-time
employees received in lieu of benefits.
The double-edged nature of such percentage
payments in lieu of benefits io evidenced by the
arbitral rejection nqt: only of attempts by employees to
obtain benefit payments in addition to such percentage
payments, but also of attevipts by employers to obtain
reductions in the applicable percentagc payments to
reflect changes in the ambit of benefits covered by the
percentage payments, or the cost of those benefits:
see, for example, Regional Municipality of
Ottawa-Car,le('on and Ottawa -Carleton Public E to ees
Union, CLYDE.. Local 503 (OHIP payroll tax grievance) ,
supra, in which arbitrator Stanley found that the
employer's expressed intention tv reduce the amount of
the percentage in lieu of benefits (12%) paid to
casual, part-time, and temporary employees, in light of
an OHIP payroll tax introduced by the Government of
Ontario, would cofYstitute a violation �)f the collective
agreement.; and Re Alexandra Marine & General Hospital
and O.N.A., supra, in which arbitrator Devlin found a
similar violation where the employer unilaterally
reduced the percentage in lieu of fringe benefits (14%)
for part-time nurses who enrolled in the Hospitals of
Ontario Pension Plan after part-time employes became
eligible to participate in certain employer pension
plans as a result of amendments to the Pension Benefits
Act.
Note 3 on pages 8-2 and 8-3 of Brawn and Beatty.
Canadian Labour Arbitration (3rd Ed_), includes the
following as examples of benefits: life insurance,
prescription plans, night recovery leave, OHIP
premiums, U.I. premiums, indemnity for home study,
Christmas bonuses, pension surpluses, retirement
allowances, meeting allowances, f~hild care allowances,
layoff allowances, parking privileges, housing buy-back
arrangements, railway passes, car allowances, personal
leave, religious or special leave for non-traditional
holidays, responsibility allowances, legal fees,
professional dues, gratuities, moving expenses, locker
or storage f=acilities, clothing allowances, tool
allowance, and company cars. Although that list does
not purport to be exhaustive or definitive regarding
what is encompassed within the term "benefits" in a
provision such as Article 5.02, it does px-ovide
examples of the broad range of items which may fall
24
within the purview of that term.
Article 25 of the Agreement is entitied "Insurcd
Benefits", and includes provisions regarding sick pay,
life insurance, a supplementary health and hospital
plan, a vision and hearing care plan, a dental caro
plan, and a to-ag-term disability plan. Those benefits
aze undoubtedly included within the ambit of the term
"bi�ne,fits°' in Articic 5.01. However, if the parties
had intended to confine that term to those bcnctits,
they could easily have done so by stating that
"temporary employees shall receive 10 percent of base
wages in lieu of holidays, vacation, and the benefits
listed in Article 5" (or perhaps more chlicfuely b
using the phrase "insured benefits" or the phrase
"regular fringe benefits" in Article 5.02). However,
they did Tiot do so. The term they used is "bcnefits",
which we construe to be a word of sufficient breadth to
include the "special compensation entitlement on
termination or death" for which the Letter of
Understanding provides.
As noted in the foregoing summary of Union counsel's
submissions, it is the Unions position that employees in the
group of grievors exemplified by Mr. Gagliardi are entitled to
special compensation under the LOU because they were all
full-time employees of the MOF who became tuli-time empioyees
QE OPACfMPAC on December 31, 1998_ In support of that
position, Union counsel submitted that the fact that they were
unclaeeified employees with the MOF who became temporary
employees with OPAC/MFAO does not deprive them of that
entitlement, because the LOU refers to "full time employees
who accepted employment with MPAC at the time of transfer",
and does not include any requirement for them to have been
classified employees nor contain any language which excludes
unclassified employees from its scope. He further submitted
the Employer xc seeking to have it modified through the
implying of qualifiers which a -re not contained in it.
5
Although Union counsel did not explicitly submit that
the 2001 Award is wrongly decided, accepting the foregoing
argument would clearly cgnstitute declining to follow it. The
conclusion reached in the majority award did not modify the
LOU by implying qualifiers into it. What the award fQun,d was
that the Lou does not apply to temporary employees because it
is one of the llbenefitsl' in lieu of which temporary employees
receive 10 perci�nt of base wages, pursuant to what is now
,Article 6.02 of the Agreement. None of the grievors in the
group o ernplified by the grievance of Mr. Gagliardi can be
awarded compensation under the LOU unless that interpretation
of Article 6.02 is disregarded by declining to follow that
award.
It is well established in the arbitral iurispr-udence
that, in view of the importance of providing finality to the
resolution of disputes, a prior decision between the parties
dealing with the same issues under the same Collective
agreement language should be followed as a matter of principle
unless it is clearly wrong. See, for example, the following
passage from Arbitrator Tacon's award in Toronto ,District
.School Board and MaintEt ianCe & c>nstructioxz Skilled Trades
COT-2nCil, supra:
71 Brewers Warehousing [(1954), 5 L.A.C_ 1797
(Buskin)] was the earliest articulation of the proper
approach of a subsequent arbitrator to an earlier
arbitratic.n award (at page 1798):
it is not good policy for ane Board of
Arbitration to refuse to follow the award of
another Board in a similar dispute between the
same parties arising out of the same Agrct--ment
where th(c dispute involves the interpretation of
26
the Agreement. Nonetheless, if the second Board
has the clear conviction that the first award is
wrong, it is its duty to determine the case
before it on principles that it believes are
applicable.
72 That theme has echoed throughout the arbitral
jurisprudence, as evidenced in the following excerpt
from Essar Steel, supra, at p. 190:
One of the most important labour relations
principles is the concept of final and binding
resolution of differences by arbitration during
the term of a collective agreement_ Labour
relations peace is built upon this concept and
operates on the fundamental premise that the
parties will respect and abide by the decisions
of arbitrators. The parties must be able to
rely on decisions as being final and binding so
that they may properly govern themselves in
administering, operating under and bargaining
the terms of their collective agrooment. If
previous decisions are not respected, then there
will be no resolution of differences and the
relationship between the parties will only
worsen. As a result, apart from the doctrine or
res judicata, it is rare for an arbitrator to
disregard a previous decisions between the
parties dealing with the same issue under the
same collective agreement.._.
As indicated above, since the 2001 Award was issued,
OPAL/MPAC has administered the LOU in a manner that is
consistent with it. In accordaDce with that award, any
classified employee of the NOF who came over to a nontemporar
position at OPAL/MPAC at the time of the transfer continued to
accumulate service for purposes of special compensation
entitlement under the LOU, but any unclassified employee of
the MOP who came over to OPAL/MPAC as a temporary employee and
subsequently loft the employ OPAL/MPAC did not receive any
special compensation under it. There have been at least 205
employees to whom this has applied.
Since in reliance upon that award OPAC/MPAC has for
27
over seventeen years applied the LOU in accordance with it,
and since I remain satisfied that the 2001 Award correctly
determined that OPACfMPAC's temporary employoe8 are not
entitled to receive compensation under the LOU because the
"Special compensation entitlement" for which it provides falls
within the ambit of the term "benefits" in what is noir Article
6.02 of the Agreement, neither Mr. agliardi's grievance nor
any of the other grievances in the group which his grievance
exemplifies can Eucceed, because those grievors were all
unclassified employees of the MOF who became temporary
employees of OPAL/MPAC at the time of transfer and
consequently have received the aforementioned 1026 paid in lieu
of that benefit and the other benefits to which Article 6.02
applies.
Unioxx counsel also submitted that the gricvors'
entitlement to special compensation is supported by the fact
that while they were employed by OPAL/MPAC, their seniority
was backdated to their start date with the MOF. It was his
contention that OPACfMPAC's recpgnition of their MOF start
date as their seniority date serves as a legal trigger that
supports their entitlement under the LOU. However, as
submitted by Employer counsel in response to that argument,
LOU ##7 very specifically deals with the issue of the seniority
to be credito[i tc persons whom the Employer hired as temporary
employees an December 31, 1998, and who had unclassified
service with the MOF immediately prior to and contiguous with
that. date. It records the parties' understanding that such
28
persons will be credited with seniority 'for the sole purpose
of vacation, layoff and the filling of vacancies". If the
parties had also wanted to have that seniority credited to
those employees for the purposes of Letter of Understanding
#l, they could have included a refereTice to it, but they did
not do so. Consequently, I am not that the
seniority backdating for which LOU 47 provides gives rise to
entitlement to special compensation under LOU #l.
Special compensation under the LOU is calculated on
the basis of an employee' -9 "combined service with OPS and
MPAC". David Taylor's grievance raises the issue of whether
only service as a classified employee of the MOF and service
as a nontemporary employee of OPACfMPAO should be included in
that calculation, or whether it should also include the
employee's service as an unclassified or temporary employee.
As indicated above, Mr. Taylor was a classified
employee of the MOF from 1-985 until August 31, 1989, when he
resigned to pursue a university education. While pursuing
that education, he worked for the MOF during the summers as an
unclassified employee working full-time hours. After
completing university, hs returned to work for the MOF,
initially as an unclassified employee and then as a classified
employee with an OPS continuous service date of June 3, 1996,
remaining a classified employee of the MOF until December 31-,
1998, when he accepted employment with OPAC/MPAC as a
nontemporary employee. In calculating his entitlement to
special compensation under the LOU, the Employer used his OP
29
Continuous service date of June 3, 1996, in accordance with
its longstanding consistent practice of usi-ng employees, OPS
continuous service date at the time of transfer in calculating
special compensation entitlement under the LOU, and of not
including any unclassified servica time in that calculation.
Through his grievance, Mr_ Taylor socks to have his
unc'lassificd service time included in that calculation b
having it calculated from February 17, 1992, which is the
start date of his membership in the OP EU Pension Plan_ That
start date iz earlier than his OPS continuous service date
because Mr- Taylor, purchased for pension entitlement purposes
all of the time that was eligible for pension entitlement
service credit during period that he was a tLaiversity student.
When Mr. Taylor lett the employ of the MOF on the
December 31, 1995 transfer date to accept employment with
OPAL/MPAC as a nontemporary �--rmrplc ee, he did not receive any
termination or severance pay for the period between his
continuous service date of June 3, 1996 and his separation
date of December 30, 1998, because that period of two years
and seven months constituted less than the fives years of
service as a classified employee required for entitlomcnt to
it under the OPS Agreement. The previous periods that Mr.
Taylor had worked as yin unclassified employee were not
iTicluded in the MOFrs calculation, presumably because his
employment contracts for triose periods of unclassified
employment provided for "Pay in lieu of employee benefits [in]
an amount equal to 2 of basic hourly rate for all hours
30
worked exclusive of overtime". I am not persuaded on the
hasis of the material before me in these proceedings that
OPAL/MPAC breached the Agreement in applying the same approach
in ealculatiay tie E�pfz!cial compensation to which employees are
entitled under the LOU. Consequently, z find that Mr. Taylor
is not entitled to receive any additional special compensation
tinder the LOU.
Similar reasoning precludes Mr_ Shea and Ms_ Bouchard
from receiving special compensation under the LOU for periods
during which they worked for the MOF as unclassified employees
and subsequently worked for OPAL'/MPAO -�Ls tempoTary employees,
because during those periods they received payment in lieu of
that and other "benefits" pursuant to their employment
contracts and what is now Article 5.02 of the Agreement.
However, the only matter decided in the 2001 Award was that
OPAC'.s temporary employees Frere not entitled to Teceive
compensation under the LOU because the "Special compensation
entitlement's for which it provided fell within the ambit of
the term "benefits" in what was then Article 5.02, which is
now Article 6.02 of the Agreement. The issue of whether an
unclassified MOF employee who came to work for OPAC as a
tempoTaxy employee, but who subsequently became a nontemporary
employee, is entitled to any special compensation under the
LOU for the period between the effective date of that
nontemporary employment and the end date of January 1, 2016
specified in the LOU, was not addressed in that award.
Sind the rationale for denying temporary employees
31
entitlement to special compensation under the LOU is that it
is one of the "benefits'l in lieu of which they receive to
percent pf base wages wider what is now Article 6.02 of the
Agreement, it follows as a matter of principle that if they
cease to be temporary employees and become noTitemporar
employees, they are no longer precluded from receiving special
compensation under the LOU in respect of periods of full-time
employment during which they were not receiving payment under
that provision in lieu of henefits_ Accordingly, Ms. Bouchard
is entitled to receive special compensation and(-r the LOU for
the period from May 3, 1999, which is the date upon which her
aforementioned appointment to a nontemporary position with
OPAL/MPAC became effective, to January 1, 2016, which is the
end date specified in the LOU.
As indicated above, the alternative argument advanced
on behalf of Ms. Bouchard was that she can be found to be
entitled to special compensation under the LOU for the time
that she was employed by the MOF, and also for the time that
she was employed by OPAO/MPAC up to January 1, 2016 on the
basis that prior to December 31, 1998, she should have been
converted undex` Article 31.15.1.1 i�)f the OPS Agreement from an
unclassified position to a classified position. However, as
submitted by Employer counsel, I do not have jurisdiction to
decide whether or not Ms. Bouchard was entitled to such
conversion. If Ms. Bouchard was of the view that she was
entitled to conversion under that Article, it was incumbent
upon her to have filed a grievance under the OPS Agreement so
32
that it could be decided by the Grievance Settlement Board if
it could not he resolved by OPS2U and the MOP. Thus, Ms.
Bouchard's entitlement to special compensa.tiori undex, the MOF
is not enhanced by that alternative argument.
Mr. Shea is similarly entitled tQ receive special
compensation under the LOU for the period from ,lune 30, 1999,
when his appointment to a nontemporary position became
effective, to the date on which his resignation from that
position became effective. As indicated above, he retu,rrned to
the employ of OPAC'fMPAC in 2009. However, it is unclear from
the stipulated facts and the exhibits entered into evidence on
the agreement of counsel whether he was employed as a
temporary employee or a nontemporary employee theTeaftex. 1E
he either returned as a nantcmporary employee or returned az, a
temporary employee but subsequently became a nontemporary
employee prior to January 1, 2015, he would also be entitled
to receive special compensation udder the LOLY for the period
during the interval in which he was employed as a =temporary
employee on a full-time basis. In concluding that Mr. Shea's
entitlement to special c-ompensation could include both of
those periods, I respectfully agree with and adapt Union
counsel's contention that the LOU does not require service to
be continuous or unbx'oken. As he submitted, when the partiee
meant continuous service, they used language suc-h as
l'ccn8ecutive months", as exemplified by Article 6.06 of the
Aqreement, or "continuous service", as exemplified by the
first sentence in Article 12.01 and the last sentence in
33
Article 12.01(h). Although Article 12.01 defines "seniority"
to mean "length of continuous service" in the oontext of
determining "employees' seniority dates", in the LOU the only
qualifier is "combined" service. 3n the content of
detfrmining entitlement to special compensation under the LOU,
the phrase «c:ombini�d service" is clearly intended to convcy an
intentipn to have aux employee's service with OPS eombiried with
his or her service with MPAC. Nothing iT� the LOU requires
that service to be continuous.
It is common ground between the parties that FIs.
Macri was employed by the MOF in its Property Assessment
Division, and not in its Corporate Services Division as
initially asserted in support of her grievance. She accepted
a position as a temporary employee with OPAL/MPAC at the time
of transfer, but her employment status was subsequcntly
changed to that of a nontemporary assessment field officer,
with May 1.7, 1999 as the effective date of that "Appointment
to Classified staff"_ Thus, she did not accept a paoition
with OPAO/MPAC as a result of a job posting for one of the
approximately 29 "Corporate Servioes positions" that were
posted before December 31, 1999, as initially submitted by
Union counsel in support of her grievance. However, she is
entitled to receive special compensation under the LOU for the
period fxom May 17, 1999, to the end date of January 1, 2016
specified in the LOU, because durinq that period she was a
nontemporary employee of OPAL/MPAC and was accordingly not
receiving pay in lieu of that benefit under Article 6.02.
34
Prior to December 31, 1998, Mr, 0doom perLormed
information technology services for the MOP a-5 an employee of
Oeac. He was impacted by the transfer of property assessment
functions from the MOF to OPAO because following that transfer
there was no longer any need for those services to be provided
to the MOF. He subsequently applied for a position with OPAO
through a job posting and was hired by it as a Technology
Infrastructure Analyst on Fcbruary 1, 1999 through a temporary
contract with a termination date of July 30, 1999. it was
contended on his behalf that this was a job posting for one of
the "approximately '29 Corporate Services positions, posted on
or before December 31, 19991' referred to in the LOU. However,
the LOU only gives that entitlement to full-time employees of
the MOF who accepted employment with MPAC as a result of those
job postings. Although Mr. Odoom perfaxmed information
technology services for the MOF, he did so not as an employee
of the MOF but as an employee of GEAO. Consequently, he is
not entitled to special compensation under the LOU.
Mr_ toeken's claim for entitlement to special
compensation under the LOU is not advanced by section 65{2} of
the Employment Sr-andards Act. That provision stipulates that
in calculating an employee's severance pay under section 65(1)
of the Act, all time spent by an employee in the employer's
employ, whether or not continuous and whether or not active,
shall be included in the determination. However, as submitted
by Employer counsel, that provision applies to blocks of
service with an employer, and does not address service with
35
two employers. Moreover, it is evident from the wording of
the LOU that the purpose of includinq a reference to that Act
was to make it clear that the "termination or severance pay,-
referred
ay"referred to in the LOU "includes any severance pay under the
Employment Standards Act". Mr. Stoeken is not entitled to any
Special compensation under the LOU for the period during which
he was employed by the MOF as an unclassified employee nor for
the period during which he was employed by OPAC/MPAC as a
temporary employee for the reasons set forth above. However,
if the date on which he became a nontemporary employee of
OPAL/MPAC preceded the end date of January 1, 2016 specified
in the LOU, he would be entitled to special compensation for
the period between Chose two dates during which he was no
longer receiving pay in lieu of that benefit under Article
6.02 of the Agreement.
The deter -urinations made in this award will hopefully
be of assistance to the parties in resolving the other
grievances which have hien fiJ ed regarding entitlement to
special compensation under the Lou_ However, I shall remain
seised for the purpose of dialing with any unresolved issues
arising out of those grievances, and any difficulties which
may lie cnc,�)untered in the implementation of those
determinations.
DATED at Burlington, Ontario, this 6th day of Deceiiber, 2018.
Robert. D. Howe
Sole Arbitrator
36