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Home My WebLink About1976-0113.Gauthier.77-06-13113176 CEO&N Ef,<PLOYEES 416/964 6426 GRIEVAIKE SETTLEMENT EOARO suite 405 77 Bloor street vest TOAQO?ITO, Cntario MSS lM2 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. R. Gauthier and Ontario Housing Corporation Before: K. P. Swan Vice-Chairman George Peckham Member D. Anderson Member For the Grievor: Mr. P. J. O'Keefe Assistant Regional Director Canadian Union of Public Employees For the Employer: Mr. A. P. Tarasuk Central Ontario Industrial Relations Institute Hearing: May lOth, 1977 Suite 405, 77 Bloor St. W.' Toronto, Ontario Mr. R. Gauthier is a former employee of the Ontario Housing Corporation (Ottawa Rousing Authority). On October 5, 1076 he attained the age of 65 years and was therefore subject to a normal retirement date of October 30, 1976. The collective agreement, however, makes provision in Article 29.05 for extensions beyond normal retirement: The normal retirement age for an employee shall be the last working day of the month in which his 65th birthday falls. Yearly extensions to employment may be granted subject to the employee providing medical certification of fitness to do the work for which employed and a satisfactory recommendation from the appropriate supervisor. Such extension may be reviewed if indicated by health 01 performance reasons. It is common ground that Xr. Gauthier applied for an extension of one year and provided the necessary medical certificate and a satisfactory recommendation. The matter went before the employer's Retirement Committee on the recommendation of the Ottawa authority that the extension be granted, but that committee only approved an extension until December 31, 1976. A subsequent further extension to January 31, 1977 was granted, but the grievor gave notice shortly afterwards of his intention to resign. The matter before us quite simply, is the meaning of the phrase "yearly extension to employment may be granted" in Article 29.05. The employer's argument was that the language was designed to give to management the right to grant extensions of one year, and to give added'protection in such cases though the procedure to review where health or performance reasons so ” -iP 3. require. Apart from that, Mr. Tarasuk submitted, there were no limitations on the management right to re-appoint retiring employees. We are unable to accept that interpretation of the article. The parties have made the normal retirement date a matter of agreement, and they have provided for an exception for cases when an extension may be made. That exception quite clearly permits "yearly" extensions, and it is a common principle of the construction of collective agreements that to state one possibility is to exclude all other incompatible possibilities. To do otherwise, of course, renders the word "yearly" meaningless. !,Ie can thus see no justification for extensions for shorter, or longer periods than the yearly period set out. Mr. Tarasuk suggested that this clause was clearly for the benefit of the emploYer, since it protected it from a situation where health or performance defects could supervene during a long extension. With respect, we do not think that the article is solely for the protection of the employer. An employee has a right to some sort of certainty of employment, and we are of the view that the provision for yearly extensions protects the employee from becoming, as the grievor became, practically an employee at will once retirement age is reached. Our award, therefore, is that the extensions granted to the grievor were contrary to the collective agreement, and that he is entitled to some compensation. Given the subsequent resignation c I. of the grievor, the parties. indicated that they will be able to settle the amount of compensation due. Should they not succeed, however, we retain jurisdiction for the purpose of making that calculation. Dated at Toronto this 28th day of June, N77 I:. P. Swan Vice-Chairman I concu.? George Peckham Member I concu* D. Anderson Member (See Addendum attached) IN THE ilATTER OF AN ARBITRATION BEWEEP!: Eit-. R. Gauthier AND Ontario Housing Corporation A D D E N D U 14 At a time when the draft award in this matter had been prepared by the Vice-Chairman and sent to the members for comment, a series . of correspondence began between the Employer, the Union and the Board. The subject of this correspondence was the submission of Mr. Tarasuk, in his letter of June 13, 1977, that the Board was functus officio since, in essence, the Employer had decided to accept the claim of the employee. Mr. Tarasuk's letter reads, in full, as follows: This is to advise you that the Corporation accepts the claim as stated by the Union at the hearing OR May 10th last regarding the instant matter. Although the claim as stated at the hearing varies from the claim in the grievance. the Corporation acknowledges that extensions of tenure (if granted) pur- suant to Article 29.05 shall be for yearly periods. In view of this acknowledgment it is the Corporation's position that the claim has been settled and that this Board is therefore fun&us as regards any determination OR the issue. However, should any problems arise regarding the issue of compensation the Corporation acknowledges that the Board is seized of that particular matter should the parties be unable to resolve it. The Corporation hereby requests that this letter be placed before the Board for disposition. The Union, by letter dated June 20, 1977, objected to this procedure, and insisted that the Board was still seized of the matter and that it would require a decision of the Board. The Employer responded to this position by letter dated July 6, 1977, Citing Re Imperial Tobacco(1975). 8 L.A.C. (Zd) 388 at page 390 in support of its submission that our jurisdiction herein was at an end. We have read the Imperial Tobacco case, and we are not convinced that it supports Mr. Tarasuk's submission unless a great deal more can be read into his letter of June 13, 1977 than is evident on its face. For example, he indicates that the claim of the Union "as stated . . . ..at the hearing" is accepted, and also notes that "the claim as stated at the hearing varies from the claim in the grievance". The only words in the-rmperial Tobacco award which might support the Employer's position are Cat p. 39or: There is no suggestion that the company was prepared to acknowledge the validity, in principle, of the union's position in this case. If that had been the case, then such ackcowledgement together with payment, rmght indeed be considered to constitute a complete answer to the matter, and proceeding before this board might be thought to be a pointless exercise which should not be allowed. It will be noted that this is tentative language, and is indeed obiter since the Company's submission in that case was rejected. 3. In any event, we are not satisfied that the letter of June 13, lg77 constitutes "a.complete answer". The claim "as stated . . . ..at the hearing" constitutes a settlement of a claim which does not exist except as a part of the record of this Board, if it does indeed differ from the grievance itself (we do not know if it does or not, since the.grievance document itself has never been a part of the record herein, although the parties joined issue fully, and apparently unconcernedly, in its absence). If these proceedings are now to terminate on the Employer's assertion that we are functus, then our award wculd be a nullity, and the Employer's acceptance would be of a claim which had no manifestation except in the memories of those who were present at the hearing to hear it "as presented". Should a dispute arise subsequently as to the effect of the settlement proposed, the vagaries of human nature and the human memory are such that it is likely that quite different things may have been heard by the parties. Although informal consultation with members of the Board might assist the parties in interpreting the settlement, no formal assistance could be produced should "push come to shove", since the Vice-Chairman and the members are not competent or compellable witnesses in any proceeding which might arise: see Crown Employees Collective Bargaining Act, s.49(5). Furthermore, in the absence of an agreement by the Union to accept the Employer's proposed settlement, we are convinced that .there is every likelihood that this matter may again become an issue in dispute. To decline to decide the issue once it has been z % - i I 4. placed before us would hardly be consonant, in such circumstances, with our duty to provide a final and binding decision. Our position appears to be fully supported by the awards in Re International Nickel Co. (1972), 24 L.A.C. 51 (Weiler); ~2 Union Gas Co. of Canada (1973), 4 L.A.C. (2d) 132 (Rayner); $- Misawa Homes Ltd. (1974), 5 L.A.C. (2d) 113 (Penner); Re Imperial Tobacco Products, supra; and Re Capital Coach Lines Co. Ltd. (19751 I 8 L.A.C. (2d) 355 (Abbott). We might note that, in each of these cases, specific relief had been granted to an individual grievor without an acceptance of the claim as to agreement interpretation involved in the grievance. Here what the Employer proposes is an acceptance of the interpretation placed on the agreement by the Union (subject to what we have already said about the uncertainty of the terms of that acceptance) but without an agreement on specific relief. We do not consider this reversed situation to strengthen the Employer's position, but to weaken it, particularly in light of what it has asked us to do in respect of retaining jurisdiction over the sntum of specific -- relief. We are unable to understand how one party can unilaterally oust, not our entire jurisdiction, but half of it only. We are also less than happy about the prospect of being left to determine a dispute as to compensation on the basis of a "settlement" which is still in dispute. It is often difficult enough for arbitrators to apply their own awards to compensation issues; to apply a settlement based on a "claim as stated.... at the hearing" might prove impossible. We therefore do not consider our jurisdiction to be at an end, 5. and we therefore issue our award as decided by us in executive session shortly after the hearing and drafted by the Vice-Chairman before the Employer's letter of June 13, 1977. K. P. Swan Vice-Chairman George Peckham Member I concur Dan Anderson Member