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HomeMy WebLinkAbout1990-1642.Rankine.92-03-19 ONTARIO EMPLOY~'S DE LA COURONNE ClIO WN EMPLOYEE$ DE ~. 'ONTA RiO GRIEVANCE C,OMMISSION DE SEITLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TO~ONTO, ONTARIO. MSG IZ8 TELEPHONE/TEL£P~ONE. (~ ~) 226- t358 180, RUE DUNDAS OUEST, Bt_~EAU 21{~, TORONTO ~ONTAR$O), M5G 'lZ~ FACSIMiLE/T~L~COPlE : [416I 328-~396 1642/90 TN THB HATTBR OF AN 2~BITRATION Under THE CROWN RHPLOYBB8 COLLBCTIVB BANGAZN3;NG ACT Before THE GRTEVANCB SETTLEMENT BOARD BETWEEN OPSEU (Rankine) Griever - and - The Crown in Right of Ontario (Ministry of Health) B~ploye~ BBFOR~: B. Fisher Vice-Chairperson P. Kiym Member H. Roberts Member FOR THE P. Chapman GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THR D. McLeod ENPLOYBR Counsel Genest Murray Barristers & Solicitors HEARING Janauary 30, 1991 June 18, 1991 November 8, 1991 This case involves the determination of severance pay under Article 53.6(2) of the ' Collective Agreement where the employee was on LTIP= at the time of her retirement. Article 53.6(2) reads as follows: "The calculation of severance pay of an employee shall be based on the regular salary of the employee at the date when he ceases to be an employee." The basic facts are simple and not in dispute. The Grievor became ill and went on LTIP in August 1980. She remained on LTIP until her retirement at age 65 on July 31, 1990. Upon retirement she received her severance pay under Article 53. The Ministry had calculated her severance pay based on her pre-disability salary, that Is her salary when she was last actively employed in August 1980. The Grievor claims that the calculation should have been based on the salary that she would have received had she worked up to her retirement, in other words the existing wage as of July 31, 1990 for her classification. The Employer had convincing evidence that for at least the last 10 years the consistent practice of the Employer has been to calculate severance pay based on pre-disability income. This policy was stated in the Manual of Administration and acted on hundreds of time a year. The Union was in possession of the Manual of Administration at' all material times. However, in July of 1988 Ms. Shirley McVittie, Benefits Counsellor for 0PSEU engaged in a course of correspondence with Mr. Brian Neale, Regional Personnel Administration, Ministry of Health regarding a grievance filed by Joseph Lepage. The issue in the Lepage grievance was identical to the one in this grievance. Ms. McVittie on behalf of OPSEU stated the same position the Union was advancing in this case. Mr. Neale responded in writing saying that he disagreed with OPSEU's position and maintained his position was proper. The grievance was ultimately settled on a without prejudice and without precedent basis. It is important to note that this Lepage grievance was tiled and resolved during the Collective Agreement which expired on December 31, 1988, while the present grievance was filed under the subsequent agreement. Neither party sought to change the language of Article 53.6(2) of the Collective Agreement. in the negotiations leading up to the Collective Agreement in force in 1990, despite the knowledge that each party disagreed with the others interpretation and that a grievance clearly addressing this issue was settled without prejudice or precedent. However since the Employer became aware of the Unions contrary position prior to the expiry of the previous Collective Agreement, they have clearly lost their ability to rely on the doctrine of estoppel, as estoppel only lasts to the end of the current agreement when the "innocent" party first learns that the opposing party is intending to rely on their strict legal rights. The question remains however Whether or not one can rely on the doctrine of past practice as an aide to interpreting this clause. First of all, let us say clearly that the term "regular salary of the employee at the date when he ceases to be an employee" is ambiguous at least in terms of how that lerm applies to people on LTIP. Therefore past practice, if the other requirements are met, would be admissible as an aide to interpretation. The classic statement on the doctrine of past practice is found in John Bertram & Sons Co. Ltd. (1967), 18 L.A.C. 362 (Weiler); Hence it would seem preferable to place strict limitation on the use of past practice in our second sense of the term. I would suggest that there should be (1) no clear preponderance in favour of one meaning, stemming from the words and structure of the agreement as seen in their labour relations context; (2) conduct by one party which unambiguously is based on one meaning attributed to the relevant provision; (3) acquiescence in the conduct which is either quite clearly expressed or which can be inferred from the continuance.of the praclice for a long period without objection; (4) evidence that members of the union or management hierarchy who have some real responsibility for the meaning of the agreement have acquiesced in the practice.. However in this case lhe third element, acquiescence, presents a problem. Even if I were 3 to find that the Union had acquiesced in the past, this behaviour clearly stopped once the Lepage grievance was filed. It should be noted that the settlement of the Lepage grievance did not result in it being withdrawn (which would compel us to treat it as if it had never been filed) but rather it was seined. However from that point on it cannot be said ttmt the Union continued to acquiesce in the Employer's interpretation. Furthermore the first requirement presupposes that the intended interpretation is not contrary to the actual working of the Article. Just because a clause is ambiguous does not mean that any interpretation is possible, rather it simply means tha'l a limited number of interpretations may be possible. If we examine the actual words of Article 53.6(2) we can see that .lhe Employer's interpretation is not a realistic one. ,An employee who is o~l LTIP is still an "employee" of the Employer. Therefore the grievor was an employee up until her actual retirement date, She is entitled to a payment equal to her "regular salary" as of that date. This could mean one of possibly three things: 1. As LTIP is a benefit, it is not a salary, therefore her salary at retirement was zero, thus her severance pay is zero. 2. Salary means the salary paid to her classification, thus the Union's interpretation is correct. 3. if salary could be seen as another word for income then i. TIP is a form of income, thus the severance pay should be based on the LTIP rate prio; to retirement. However by no stretch of the imagination could the regular salary of the employee at the date she ceases to be an employee be found to be the rate of her salary 5 years earlier, when she first became disabled. This can be further understood by studying some changes to regulations under the Public 4 Service Act which governed the payment of severance pay to non-union employees. Sub-section 92(2) of regulation 881 R.R.O. 1980 reads as follows: "The calculation of severance pay of an employee shall be based on the regular salary of the employee at the date when he ceases to be an employee" Note that this language is identical to the Collective Agreement. However on January 21, 1986, by way of 0.' Reg. 24/86, the Government revoked subsection 92(2) of Reg. 881 and substituted the following: The calculation of severance pay of an employee shall be based on the salary of the employee, (a) at the date when he or she ceases to be an employee; or (b) in the case of an employee receiving benefits under the Long Term Income Protection Plan, at the date when the employee received his or her last salary prior to receiving benefits under the Plan. O. Reg. 24/86, s.36(1). The fact that the Government enacted a special provision for LTIP employees shows that theY intended to treat LTIP employees different from non-LTIP employees. The inference must therefore be that prior to these amendments, LTIP and non-LTIP employees were to be treated the same. We therefore reject the Employer's position for the reasons set forth above. However this does not necessarily mean that the Union's' position prevails because we are then left to determine, absent any extrinsic evidence, the appropriate meaning of the clause. A very strong argument could be made for simple proposition that the term "the regular salary of the employee" means the salary, if any, the person was reCeiving just prior to her 5 retirement. LTIP payments wherever are not salary, therefore the regular salary of lhe 6rievor was zero. This would result in the Grievor and all other retiring employees on LTIP, receiving no severance pay. This Was clearly not the intention of either party, as evidenced by the fact that the Employer has always taken the position that employees in this situation are entitled to some severance pay, they just disagree on the amount,. We are therefore loath to apply an interpretation to this agreement which, although it may be internally logical, would result in a situation that neither party intended or desires. It is clear that employees on LTIP are to be treated differently from non LTIP employees as Article 53.7(b) clearly states: "For the purposes of determining qualification for se~erance pay and the amount of severance pay to which an employee is entitled, an employee's continuous service shall not include any period .... when he is receiving benefits under the Long Term Income Protection Plan." It would appear therefore that lhe only penalty the parties wished to visit on LTIP employees who were retiring was the denial of accumulating seniority for the LTIP period. They did not provide any special provisions for calculating the rate of severance pay. The Union's interpretation is certainly within the bounds of reasonableness and is supportable by the wording of the language. In so far as the only other valid interpretation (zero severance for LTIP employees) was clearly not contemplated by the parties nor desired by them it follows that the Union's interpretation is the most appropriate one. The grievance therefore succeeds. The Grievor is to be compensated on the basis of the difference between the severance pay she would have been paid had she been receiving the wage of a Office Administration 2 as of ,July 30, 1990 and the amount she actually did receive together with Interest at the rate of 13.5% (being the rate prescribed blt the rules of Civil Procedure for the 2nd quarter of 1990) from September 20, 1990 (the date 20 days prior to the filing of the grievance) to date of payment. We remain seized of any issues arising from the implementation of this award. Dated this 19ch day of March , 1992 · ~FiSHER - CHAIRPERSON.. H. ROBERTS EMPLOYER MEMBER