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HomeMy WebLinkAbout2015-3262.Conroy et al.24-05-14 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# 2015-3262; 2016-0041 UNION# 2016-0252-0001; 2015-0252-0010 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Conroy et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Kenneth Petryshen Arbitrator FOR THE UNION Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel HEARING May 8, 2024 -2 - Decision [1] This decision deals with a grievance filed on behalf of Ms. Kristy Conroy and a grievance filed on behalf of Mr. Timothy Sirianni. The grievances essentially claim that the Employer improperly applied the Lump Sum Payment provision set out in Appendix B, U18, of the 2015-2017 Collective Agreement. These two grievances were before me, along with a Union grievance and many individual grievances, when I dismissed a no prima case motion made by the Employer in a decision dated March 25, 2021. The parties subsequently addressed the grievances in a Memorandum of Settlement (“MOS”) dated June 23, 2022. Paragraph 7 of the MOS provided that any disagreement about the lump sum pay grievances shall be addressed by me pursuant the expeditious and informal process set out in article 22.16 of the Collective Agreement. On the date of the hearing, only five individual grievances remained outstanding. The parties settled three of the grievances at the hearing, leaving only Mr. Sirianni’s grievance and Ms. Conway’s grievance for adjudication under 22.16. [2] The lump sum payment provision provides as follows: All OPSEU employees as of January 1, 2016, including employees on approved leaves of absences and employees temporarily assigned to a position out of the bargaining unit, shall be entitled to a one-time lump sum payment equal to 1.4% of earned base salary less statutory deductions. The determination of earned base salary shall be calculated based on payment of wages earned for regular hours worked in the 2015 calendar year in an OPSEU-represented position (including pay in lieu of vacation leave where applicable) and payment for approved leaves as covered by the Collective Agreement in the 2015 calendar year while assigned to an OPSEU- represented position. This lump sum payment shall not alter an employee’s earned base salary for any purpose. [3] It is quite clear the above provision provides the 1.4% payment only to an employee who is an OPSEU employee as of January 1, 2016. Mr. Sirianni retired from the OPS on December 31, 2015, and was not paid the lump sum payment. The Union submitted on his behalf that the January 1, 2016 date was an arbitrary date and that it was unfair to deprive him of the lump sum payment in -3 - the circumstances. It was asserted that Mr. Sirianni would have retired later if he had known that the parties would select the date of January 1, 2016, as one of the qualifying conditions for receiving the lump sum payment. I am not persuaded by the Union’s submissions that Mr. Sirianni’s grievance has any merit. Mr. Sirianni was not an OPSEU member as of January 1, 2016, and for this reason he was not entitled to receive the one-time lump sum payment. [4] Ms. Conroy was off work on maternity leave and or parental leave from January to April 3, 2015. She was not paid by the Employer during this time off, but she did receive EI payments. Ms. Conroy only received a lump sum payment based on 1.4% of her base salary earned in 2015 after she returned from leave in early April 2015. The Union submitted that Ms. Conroy should have also received payment for 1.4% of what she would have earned as base salary if she had been at work and not on leave from January to April 3, 2015. It asserted that this would have amounted to an additional payment to her of $251.47. In the alternative, the Union submitted that Ms. Conroy should have been paid 1.4% of the EI payments she had received for the January to April 3, 2015 period. It asserted that this would have amounted to an additional payment to her of $98.22. [5] Counsel made submissions on what the parties intended by the language they used in the lump sum payment provision and whether the failure of the Employer to pay Ms. Conroy an additional payment amounted to Code based discrimination in the circumstances. The Employer took the position that the parties intended that the 1.4% payment would be calculated only on base salary earnings that were paid by the Employer. It also submitted that the different treatment between employees who were working and employees who were not working and not being paid by the Employer did not give rise to a claim of Code based discrimination. The Union made submissions in support of the opposite position on the intended meaning of the language used in the lump sum payment provision and on Ms. Conroy’s claim of Code based discrimination. Having carefully considered the positions of the parties and the submissions of counsel, I am satisfied that the Employer’s interpretation of the lump sum provision best -4 - reflects the intention of the parties and that the Union’s claim of Code based discrimination has not been established. [6] For the foregoing reasons, the grievance of Mr. Sirianni in GSB File No. 2016- 0041 and the grievance of Ms. Conroy in GSB File No. 2015-3262 are hereby dismissed. Dated at Toronto, Ontario this 14th day of May 2024. “Kenneth Petryshen” Kenneth Petryshen, Arbitrator