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HomeMy WebLinkAbout1996-2588.Derochie et al.97-05-12EMPLOYtS DE LA CDURONNE DE L'OMARIO COMMISSION DE SElTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUIT 2100, TORONTO ON MSG 128 180, RUE DUNDAS OUEST; BUREAU 2100, TORONTO (ON) MSG 1Z8 GSB # 2588/96 OPSEU # 97B175 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Derochie et al) -and - the Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE O.V. Gray Vice-Chair FOR THE G. Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE S. Patterson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING February 10, 1997 Decision Chris Derochie and two others have grieved that they were not paid the severance pay to which they believe they are entitled under section 58 of the Employment Standards Act, R.S.O. 1990, c. E.14, as amended ("the ActJJ). The Act provides that its provisions may be enforced as if they were part of the par- ties' collective agreement: s. 64.5. The employer's position is that the severance pay provisions on which the grievors rely do not apply to them by virtue of sub- section 58(6)(e) of the Act, which provides that (6) Subsections (2))(3) and (4) do not apply to, (e) an employee whose employer is engaged in the construction, altera- tion, maintenance or demolition of buildings, structures, roads, sewers, pipe- lines, mains, tunnels or other works where the employee works at the site thereof; In what follows, I use the word "construction" as shorthand for "the construction, alteration, maintenance or demolition of buildings, structures, roads, sewers, pipelines, mains, tunnels or other works." To assist them in resolving their dispute about the applicability of subsec- tion 58(6)(e) in these and other cases, the parties have submitted for considera- tion a hypothetical fact situation concerning another, unnamed employee em- ployed in the Ministry of Transport ("the ministry") as a Bridge Repair HelperlSeasonal. The parties agree that at all relevant times the employee who is the subject of this hypothetical worked at a construction site or sites at which construction was the ministry's only or predominant activity. They also agree (although there is no express agreement that it is relevant) that the work per- formed by this employee at the subject site or sites was construction work. The issue I am asked to decide on a policy basis is, essentially, whether the fact that construction is not the employer's major overall activity precludes the application of subsection 58(6)(e) of the Act. Argument The union takes the position that the exemption in subsection 58(6)(e) of the Act only applies if construction is the employer's preponderant overall busi- ness. It says, and there is no dispute, that construction is only a small part of the entirety of the employer's activities. That, it says, is determinative of the ques- tion whether subsection 58(6)(e) excludes this, or any, employee of the employer from the severance pay benefits prescribed by section 58 of the Act. The union relies on the interpretation of subsection 58(6)(e) that appears in the following extract from section 20.2.6 of the Ontario Ministry of Labour's "Employment Standards Policy & Interpretation Manual": The severance exemption requires that the employee's employer (as well as the employee) be engaged in construction etc., whereas the notice exemption merely requires that the employee be engaged in this activity -the signifi- cance of this is that the severance pay exemption will not apply in some situations where the notice exemption does apply, due to the fact that the employer's main activity is not construction, etc. For example, if the majority of the employee's time is spent in doing repair and maintenance work for a company that owns a chain of retail stores, the severance pay exemption would not apply, although the notice exemption might apply. The "notice exemption" referred to in this passage is clause 2(e) of Regulation 327 under the Act, which provides that 2. Section 57 of the Act does not apply to a person who, (e) is employed in the construction, alteration, decoration, repair or demoli- tion of buildings, structures roads, sewers, water or gas mains, pipelines, tunnels, bridges canals or other works at the site thereof. Section 57 of the Act sets standards with respect to notice of termination of em- p loyment. The union argues that there is a single employer here -the Crown in Right of Ontario -and that its "main activity" is not construction. It cites Re Federated Building Maintenance Co., September 23, 1988 (Franks) E.S.C. 2377, on which the interpretation manual extract is purportedly based, and the Divi- sional Court's decision on judicial review of that decision, which concluded that Referee Franks "was correct and for the reasons given by him, in concluding that the employees did not work for an employer engaged in the 'maintenance of buildings' within the meaning of those words used in" what is now subsection 58(6)(e) of the Act. The union made reference to Re Kerr and General Manager of Social Services of Metropolitan Toronto (1991), 82 D.L.R. (4th) 197 (Ont. Div. Ct.), where the court observed that an ambiguity between discretionary entitle- ment and entitlement as of right in a social welfare statute was to be resolved in favour of the applicant for welfare assistance. It also made reference to those portions of Mr. Justice Iaccobucci's judgment in Lefebvre v. HOJ Industries Ltd. (1992), 91 D.L.R. (4th) 491 (S.C.C.) at pages 506 and 507, in which he identified the considerations that favour "an interpretation of the Act which encourages employers to comply with the minimum requirements of the Act, and so extends its protections to as many employees as possible" over one which does not. The employer takes the position that the test to be applied under subsec- tion 58(6)(e) to its activities is whether it was engaged in construction at the site where the subject employee was employed, not whether it was engaged in con- struction as its major activity. The employer observes that the decision in Re Federated Building Maintenance Co., supra, that what is now subsection 58(6)(e) did not apply to employees at a particular site was based on an assessment of what the employer was engaged in doing at that site. The referee's decision did not address the employer's activities elsewhere. The employer submits that if the Ministry of Labour interpretation manual says that an employer's activities elsewhere than at the site(s) in question are germane to the application of sub- section 58(6)(e), then the manual is simply wrong. The employer submits that in its ordinary meaning the word "engaged" simply means "occupied", and does not import exclusivity of occupation. The words of subsection 58(6)(e) do not require that construction be the employer's predominant activity. Decision I conclude that the interpretation contended for by the employer is the correct one. The Ministry of Labour interpretation manual has no independent legal effect -it cannot give the provision in question a meaning it does not oth- erwise have. The decision in Re Federated Building Maintenance Co., supra, does not stand for the proposition that the employer's activities elsewhere than at the site in question are to be weighed in the balance, as the union would have me do here. To read "engaged in subsection 58(6)(e) as though it said "preponderantly engaged or "primarily engaged or "engaged ... as its major activity" would be to read into the subsection something that is not there. The fact that construction is not this employer's major activity overall is irrelevant to the application of sub- section 58(6)(e). The issue with respect to the employer's activities is whether the employer is engaged in construction at the site where it employs the employee whose entitlement is in issue. I find that subsection 58(6)(e) of the Act applies in the circumstances of the hypothetical that the parties have asked me to address. Dated at Toronto this 12th day of May, 1997.