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HomeMy WebLinkAbout2013-2297.Thompson.15-10-21 DecisionPublic Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-2297 UNION#2013-0224-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Thompson) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources and Forestry) Employer BEFORE Reva Devins Vice-Chair FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Robert Fredericks Treasury Board Secretariat Legal Services Branch Counsel HEARING October 7, 2015 - 2 - Decision [1] The Union filed three grievances regarding the interpretation and application of the Transition Exit Initiative (TEI) in Appendix 46 of the Collective Agreement. There are also numerous individual grievances that the parties agreed to hold in abeyance pending the outcome of the Union’s policy grievances. [2] As a preliminary matter, the Employer brought a motion regarding the availability of the TEI for fixed terms employees. The parties agreed on the relevant facts that pertain to this motion as follows: a. Gladys Thompson filed a grievance on August 9, 2013, alleging that she was denied her rights under Appendix 46. Ms. Thompson was a part-time, fixed term employee with the Ministry of Natural Resources. She has now left the Ontario Public Service, but had four years of continuous service prior to her departure. b. Ms. Thompson advised the Employer on February 11, 2013 that she would not be renewing her contract. She applied for TEI on March 11, 2013 and ceased her employment with the ministry at the end of her contract on March 27, 2013. On July 18, 2013 she received a verbal response from her manager advising that she was not eligible for TEI and that her application was denied. c. Ms. Thompson did not grieve the conversion of her fixed term status to that of regular full time employee. The parties further agreed that as a part time employee, Ms. Thompson did not have any conversion rights under the collective agreement. - 3 - Appendix 46 [3] The first paragraph of Appendix 46 provides as follows: All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI). Submissions [4] The Employer maintains that the TEI is restricted to certain categories of employees and that fixed term employees are not included. Paragraph 1 of the Memorandum of Agreement set out in Appendix 46 expressly provides who is eligible to apply, stating “regular, regular part-time and flexible part-time employees will be eligible”. In the Employer’s submission, an employee must fall within one of the three enumerated categories to be eligible for the initiative. [5] The Employer relied on the definitions set out in the collective agreement that provide for different categories of employment: regular employee, fixed term employee, regular part-time employee, seasonal employee and flexible part-time employee. In the Employer’s submission, distinctions based on an employee’s status are made throughout the collective agreement, with various provisions setting out to which category of employee it applies and that an Arbitrator has no authority to amend the agreement to extend benefits to a category of employee that is not otherwise included. [6] The Employer also maintained that the specific entitlements provided under the TEI further demonstrate that it is not intended to apply to fixed term employees as it refers to benefits, such as vacation credits and termination payments, that are not - 4 - available to them. Finally, the Employer referred to an explanatory note sent to all employees that was prepared in consultation with the Union. The note confirms that only regular, regular part-time and flexible part-time employees are eligible to apply for TEI and that fixed term, seasonal, students and former public servants are not eligible. [7] The Union acknowledged that “regular employee” is used as a term of art in this collective agreement and that Ms. Thompson was, at all times, a fixed term employee with no conversion rights. In these circumstances, the Union accepts that technically, on the face of the collective agreement, Appendix 46 does not apply to Ms. Thompson. Nonetheless, the Union understood that from Ms. Thompson’s perspective, she thought she was and should be entitled to the TEI. Decision [8] The collective agreement includes defined and distinctive categories of employment status. In this case, both the Employer and the Union agreed that those definitions are relied upon throughout the collective agreement to distinguish among employees and that different benefits are, in certain enumerated circumstances, conferred on employees based on that status. [9] In this instance, I appreciate that Ms. Thompson, who had worked continuously for the public service for four years, believed that she was and should be entitled to the Transition Exit Initiative. Nonetheless, the clear language of Appendix 46 and the surrounding architecture of the collective agreement do not support her subjective belief. Paragraph 1 of Appendix 46 sets out who is eligible to apply for the initiative and only includes regular, regular part time and flexible part time - 5 - employees. The other provisions of Appendix 46 further reinforce the view that it does not apply to fixed term employees by specifying that if the TEI is granted it will be provided instead of termination benefits, a benefit that is not available to fixed term employees in any event. Appendix 46 also provides for the optional continuance of vacation credits, again, which is inapplicable to fixed term employees. [10] Ultimately, both the Employer and the Union accept that there is no provision of the collective agreement that gives rise to the entitlement Ms. Thompson has requested. In the absence of any possible violation of the collective agreement, I agree with the Employer’s submission that I have no jurisdiction to hear Ms. Thompson’s grievance regarding the denial of her TEI application. I would therefore grant the Employer’s motion and dismiss the individual grievance filed by Ms. Thompson on August 9, 2013. Dated at Toronto this 21st day of October 2015. Reva Devins, Vice-Chair