HomeMy WebLinkAbout2023-00344.Maynard.24-02-21 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2023-00344
UNION# 2023-0503-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Maynard) Union
- and -
The Crown in Right of Ontario
(Treasury Board Secretariat) Employer
BEFORE Kenneth Petryshen Arbitrator
FOR THE UNION Robin Lostracco
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Joohyung Lee
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING February 1, 2024
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Decision
[1] In her grievance dated April 21, 2023, Ms. Maynard challenges the Employer’s
determination of her continuous service date (“CSD”) and her severance credit
date (“SCD”) which she claims had the effect of denying her an appropriate
severance payment. The parties agreed to have this grievance addressed in
accordance with the med/arb process set out in article 22.16 of the Collective
Agreement.
[2] After hearing opening statements from counsel, I spent time with each party to
ascertain the circumstances that gave rise to the grievance. I was provided with
a number of documents by the Union, including a document prepared by Ms.
Maynard that contained a synopsis of relevant events from her perspective. In
determining this matter, I have considered counsel’s statements and the cases
they referenced, the circumstances relied on by each party and the documentary
material provided by the Union.
[3] Ms. Maynard was hired on a fixed term contract, effective February 19, 2008,
and became a permanent employee on November 2, 2009. Her CSD and SCD at
that time was February 19, 2008. She was off on sick leave and paid under the
short term sickness plan from February 12, 2010, until she returned on a
graduated basis on June 21, 2010. She was off again for about four months
beginning on November 15, 2010. She received Employment Insurance for the
time she was off work starting November 15, 2010, because her sickness
entitlement had been exhausted. The Employer appropriately characterized this
four month absence as an unpaid leave due to her illness. After being on long
term disability for about six years, Ms. Maynard retired on December 31, 2020.
[4] When she reviewed her Exit Information Package, Ms. Maynard had questions
about the basis upon which the Employer had calculated her severance
entitlement. She believed that her years of service for calculating severance
entitlements was greater than the 8.5 years of service determined by the
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Employer. On September 8, 2021, Ms. P. Kelly, Pay & Benefits Specialist,
provided Ms. Maynard with a financial statement setting out the basis for the
Employer’s determination that she had 8.5 years of service for severance
purposes. As provided for in specific provisions in the Collective Agreement,
severance payments are based on service accrued only up to December 31,
2016, and an unpaid leave of more than 30 days results in the SCD being
adjusted by the same amount of time an employee was on the unpaid leave.
Accordingly, Ms. Maynard’s time on long term disability after December 31, 2016,
and her four month unpaid leave of absence starting November 15, 2010, is not
considered as service time when determining the payment of severance pay.
The Employer calculated her severance pay based on her service from June 17,
2008 to December 31, 2016.
[5] The only issue in dispute concerns the treatment of Ms. Maynard’s four month
unpaid leave that began on November 15, 2010. Ms. Maynard contends that the
earlier 2010 sick leave and the unpaid leave of absence were absences caused
by the discriminatory treatment and harassment from her manager. She
maintains that she should have been paid for the four months that started on
November 15, 2010, and that this period should count as service for the purpose
of severance pay. I find it unnecessary to set out the Employer conduct alleged
by Ms. Maynard to have caused her absences from the workplace. I note simply
that Ms. Maynard was very troubled by the way she was treated by her manager
and that she strongly believes that she is owed a remedy for the months she was
absent without pay.
[6] The Employer takes the position that the claims made by Ms. Maynard and the
Union are untimely and that there is no proper basis for extending time limits in
this case. I agree with the Employer’s position. The circumstances that gave
rise to Ms. Maynard’s issues about the unpaid leave of absence occurred more
than ten years before she filed her grievance. The delay is extreme. Even if the
time started to run from the time the Employer provided Ms. Maynard with its
basis for calculating her severance entitlement, the grievance was filed at least
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one and a half years late. Although the Union argued that I should extend time
limits in this instance, I am satisfied that there is no proper basis for such an
extension.
[7] I find that the Employer calculated Ms. Maynard’s severance entitlement in
accordance with the terms of the Collective Agreement. I also find that the
grievance is untimely to the extent that it attempts to challenge the
characterization of the leave of absence that started on November 15, 2010.
Accordingly, Ms. Maynard’s grievance dated April 21, 2023 is hereby dismissed.
Dated at Toronto, Ontario this 21st day of February 2024.
“Kenneth Petryshen”
Kenneth Petryshen, Arbitrator