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HomeMy WebLinkAbout1990-1312.Crabtree.91-02-28 , ..., ~ ~ ", .:. - , ."'~ ONTARIO EMPLOYÉSDELA cOURONNE I CAOWN EMPLOYEES DEL 'ONTARIO 111111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS I I 180 DUNDAS STFlEET WEST, SUITE 2100, TOAONTO, ONTARIO. M50 TZ8 TELEPHONE/TELEPHONE: (416) 326- ¡388 180, FlUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZ8 FAcSfMfLE/TELECOPIE; (416) 326- 1396 1312/90 IN THE MATTER OF AN ARBITRATION . Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Crabtree) Grievor I - and - The Crown in Right of Ontario (Ministry of Health)) Employer BEFORE: R. J. Roberts Vice-Chairperson w. Shipman Member D. Walkinshaw Member ~ FOR THE G. Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE R. stewart EMPLOYER Counsel Winkler, Filion & Wakely .. Barristers & Solicitors HEARING: December 11, 1990 ~ ,-' ,{ 1 AWARD The grievance leading to this arbitration arose out of the denial of the grievor's claim for severance pay under Article 53.2 of the Collective Agreement. Article 53.2 reads, in pertinent part, as follows: Notwi ths tanding section 53.1, an employee whose seniori ty commences from a date on or af'ter October I, 1965 and before January I, 1970 who cea.ses to be an employee because of, . . . (b) retirement pursuant to, (i) section 17 of The Public Service Act or (ii) section 12 or 18 of The Public Service Superannuation Act; . -. '" is entitled to receive, for continuous service up to and including March 31, 1978 ( d) severance pay equal to one-half (1/2) week of salary for each year of continuous serV1ce before January 1, 1970 and one (1) week of salary for each year of continuous service from and including January 1, 1970; or (e) the amount in respect of his accumulated attendance credits computed in accordance with section 53.1, whichever is the greater, but he 1S not entitled to receive both of these benefits. . . . 0 . As can be seen, under Article 53.2 an employee who retires pursuant to Sections 17 of The Public Service Act is entitled to the greater of either a certain amount of severance pay or accumulated attendance credits for service up to and including March 31, 1978. The grievor, who was taking early retirement, wished to take , ~~ . - - -- 2 advantage of the severance pay provided in Article 53.2 because he had used up virtually all of his accumulated attendance credits. When he was advised that he was ineligible to take advantage of this provision of the Collective Agreement because his early retirement did not constitute retirement pursuant to Section 17 of The Public Service Act, the grievor filed the grievance leading to the present arbitration. For reasons which follow, this grievance is dismissed. At the hearing, the parties submitted the following agreed statement of facts: 1. Mr. George Crabtree (hereafter referred to' as the ("grievor) is employed by the Management Board of Cabinet {hereinafter referred to as the "Employer" ) as a Registered Nursing Assistant at the Whitby Psychiatric Hospital. 2. The Grievor was hired by the Employer in August 1967. Collectíve \ 3. The Grievor is and has been covered by the Agreement in force between the Ontario Public Service Employees Union and the Employer for the period extending from January 1, 1989 until December 31, 1991 (hereinafter referred to as the "Collective Agreement"). 4 . The Grievor is voluntarily retiring iri December 1990 and will receive a pension by the terms of Section 15 (2) , Schedule 1 of the P:µþlj.c,~.seJ::'~yì_c~_~_~_Il_ªj oIL,~l?m~.. 5. The Grievor will be sixty years old in December 1990. 6. The Grievor has been, and continues to be offered by the Employer a termination payment calcu1ated pursuant to the terms of Articles 53.1 and 53.4 of the Collective Agreement. 7. On July 26, 1990 the Grievor 'filed a grievance alleging that he was being denied fair and just severance pay. I I . ..-c· .u' 3 The grievor also offered brief testimony that he was retiring at the age of 60 for reasons of health. It seems that in 1973. the grievor had a heart attack which caused him to be off work for 3 months. At that time, the grievor testified, he made use of the attendance credits which he had accumulated. Even though the heart attack occurred a number of years aao. the grievor said, he remained on medication for heart and thyroid problems. The Ministry called Ms. Karen Clark. a Persqnal Officer at the Whitby Psychiatric Hospital. to testify to the manner in which the grievor's severance nay was calculated. She stated that it was calculated in accordance with auidelines set forth in the manual of administration for the Ontario Public Service. Because the grievor was takinq early retirement, she stated, he was only eligible to be paid a sum based upon one-half of his accumulated attendance credits up to April 1, 1978. Ms. Clark explained that orior to 1978, the grievor had 165 accumulated attendance credits; however, due to his illness in 1973. he used up all but 1.8 of them to supplement his sickness benefits. It was not open to the qrievor to claim the alternative amount of severance pay provided in Article 53.2 of the Collective Agreement, Ms. Clark stated. because that provision solely aoolied to civil servants taking mandatory retirement at the age of 65 ~ ~............. \."'1 -- 4 under Article 17 of The Public Service Act. rather than employees like the arievor who took voluntary retirement at an earlier aqe. Section 17 of The Public Service Act reads as follows; , Every civil servant shall retire at the end of the month In which he attains the aae of sixty-five years, but. where ln the opinion of the Commission special circumstances exist and where his deputy minister so reauests In writing, he mav be reappointed by the Lieutenant Governor in Council for a period not exceeding one year at a time until the end of the month in which he attains the age of seventy years. R.S.O. 1980. c. 418, s. 17. Prime facie. this is a mandatory retirement provision. requiring all civil servants to retire at the end of the month in which they attain the acre of 65 unless reaopointed in certain circumstances by the Lieutenant Governor in Council. At the hearing. no evidence was entered as to what the oar ties manifested to each other when Article 53.2 was negotiated; rather, the Union concentrated on attemptina to characterize even a voluntary early retirement as a retirement pursuant to Section 17 of The Public Service Act. It was submitted that Section 17 had to be interpreted in this way because it was the only provision of the act which enabled civil servants to separate from employment by retirement and there was no dispute that the grievor was retiring, albeit voluntarily. -- I ~ I ...-' oJ 5 We cannot accept this submission. To do so, would reauire us to twist bevond recognition the wordina of Section 17 of The Public Service Act. As it stands, Section 17 constitutes no more than an express statement of the mandatorv acre of retirement for ci.vil servants, 1. e . , 65 years of acre. It does not provide, as submitted by the Union, a "gateway" throuah which all retiring employees must pass, reaardless of whether they are vo1'.mtarily retiring early. We do not have any authority to disregard the express words of Section 17 and make it into something it is not. Accordingly, the construction of section 17 which was urqed by the Union must be rejected. This means. in the absence of any evidence to the contrary, ¡ that when the parties exoressly aareed that the provisions of Article 53.2 of the Collective Aareement would apoly to an employee who ceases to be an employee because of retirement oursuant to Section 17 of The Public Service Act. they intended to refer to . employees who had reached the mandatory aqe of retirement of 65 years. If they had meant to include employees who took voluntary retirement at an earlier age, it seems likely that they would not have made any reference at all to Section 17 of the Act, but rather have spoken merely of "retirement". Because the grievor took early retirement, he did not fall within the category of civil servants intended to be covered by Article 53.2 of the Collective Agreement. and, accordingly. was not ~ ~~ 1" ., 6 enti tIed to the greater of the sums set forth therein. The arievance is dismissed. DATED at London. Ontario, this 28~h day of February, 1991. 2 R. J. Vice-Chairoerson , I -'_________ Member /" , i r /( \ . 'l_ ' .-~ "1' U· '\"'() '~\ ~:! .-"_~1. ~Lor,'\ \..... ',I V / ~(Á i', ~" 1"._ .~,,,,, ~_-.-;..~.r .... _ '-.' D. Wá1~inshaw, \ Member ,; .