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HomeMy WebLinkAbout1993-0860.Bergeron.95-10-27 '- -- I "'- , - ~:;;- i~' -:< , ONTARIO EMPLOYES DE LA COURONNE _ {S., 0- v' , eRO WNEMPLOYEES DE L'ONTARIO ~... . - . GRIEVANCE COMMISSION DE ~tN~ 'D' % , \X~v\ '~~ J- 1111 SETTLEMENT , .~,' I~C REGlEMENT <. 0" , BOAflD DESGR1EFS \ltl LJyl\ 180 'DUNDAS STREET WEST SUITE 2100, TORONTO; ONTARIO. ~5G lZ8 TELEPHONEITIOLIOPHONE 14'16) 326- 1388 180,. RUE DUNDAS OUEST BUREAU 2100, TORONTO 19NTARIO) MSG,IZ8. FACSIMILE ITIOLIOCOPIE (416) 326-1396 GSB # 860/93 ~-~- .-~.... OPSEU # 93El14 ! ~.;..,~ !'Ir.~ .(.!;;;-~ 1Y::'1ll iii <'" it! ~- iiiI" : "\;~" ',t- ',' \~ ~,\\, tr/.~ l '. IN THE MATTER OF AN ARBITRAT~ON p\~ 0\_' . -" \f' -. it \', ",~ ' ~ .~ k:;i!~ + ;~~: ..,,~. 'j ,:\. ej~11m ':J I OCT 3 0 1995 Under PUc Jc, SERVIC?HE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT " '~:l\! POP (70C> Before F ,,'\.... ,_,,,.. "I .,:, -- '- ; THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bergeron) Grievor 1- and - The Crown in Right of ontario (Ministry of Health) City Ambulance Service of Quinte Ltd. Employer BEFORE S Kaufman Vice-Chairperson E Seymour Member M Milich MEpmber "- - - ~ FOR THE C. Flood GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE R Baldwin EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING November 28, 1994 February 12, 1995 ! ~ 1 -, DECISION j , ~ -, Jean_ Bergeron;grieves' that the ,~mploy~r, City. Ambulance , j ...; Serviee ("Quinte) Ltd:~, -is-, in violation of. 'p_ara.gr_aph 9 of the Memorandum of, Settlement between O?S~P ~nd P~rticipa~ing . Ambulance Services ( oneoJi which was-, the- employer) and The Crown in Right of. .Ontario_, dated .March 2,7:, 199:f._ _( Ex.. 2) . The' parties advised that a1:though."the is~u,e qf, whether the Employer isa.Crown Agent is before the. Onta~io Labour ',Relations Board,. they. 'had- agr.eed to' be bound -by the q.etermi- 'natHm of the Grievance 'pettlementBoard as to' its interpre- -t.ation of --the severance pay provision._ ~ The salient facts giving 'rise to' this grievance. are not in dispute. The gtiev.or commenced employment w~th ,City Ambu- lance'on .J-lily.~ 10" 1971 as a Driver Attendant. His__ job title was subsequently:'changed to Ambulance Attendan1: and l?e was "g:r:andfathered" in that capacity. On March 2-0, 1992 he un- fortunately injured his back in the 'course of l1isemployment ~~ -and""has been unable to- return to work l:!ince. ~e applied for and received Workers' Compensation.,penefit.s. ~~ experienced a great deal of pain and discomfort s~bsequent to his injury. In Marchi 1993 a medical speci~li$t informe~ him that he . could expect to always have pain. The special!~t told him that with physiotherapy he might. pos~ibly p~ free of pain -some day, but -the specialist was doubtful,. The grievor said that even pt~br to that, occasion he knew that he could not return to his- employment at City Ambulance. A letter dated December 3, 19921 from the Workers' Compensation Board indi- cates that the Boa-rd determined t.hat -the grievor had reached ::: his maximum medical rehabilitation (MMR), and explained that MMR means "that your lower back will not improve significant- ly" (Ex. 8) He advised that he ultimately received a non- economic loss benefit referred to in that letter. ~ The grievor_ said that after his consultation with the specialist to whom he -had referred, ~e spoke with -Shop Ste- ward John Parry, who told him ~bou,t a pew severance pay pro- \ I e' 2 vision which had come into existence since March 20, 1992. At either Mr. Parry's or the grievor's inquiry, on April 20, 19-93 operations Manager -Allan Morton wrote to' ,the Ministry of Health '.s Assis-tantRe'gional Manager :prank Payette f,or his opinion as to 'wnethe-t thegrievor"s- cxrcumstances would en- title him to severance pay under 'para.-9 of the Memorandum of Settlement:, and, if s6, whether he would approve one~time funding., for payment: of. the sev.eI?ance paymen-t. (Ex. 4) . Mr Morton frankly -acknowledged that in his view, ,i t wo~-1d have 'been a joJ{e for the 'grievor' s claim: .to have' b.eel1 h9noured,as in his view, anyone who simply res'igned and characteriz.ed their actions as a retirement wOllld- be -el1.titled to the seve,... rance payment. Mr. Payette responded by let.~er dated April 28, 1993indicat;ing that.f"Mr. Berge:t:pn Qi,d not q~alif'y for a severance payment .under par.a. 9 under the cir9~stances and that funding for it would notb~ 'apprqyed (Ex. 5.) . At lSOllle point: tOWqrd the end of ApriJ.;_ 199;3 the grievor .. attended at -Mr. Morton's office and told him _it ,was ,his intention to retire from his employment, and handed him his Ambulance Identification Card (Ex. 15 'A & Bi-. The grievor attributed to Mr. Morton a statement to the effect that if he had had 7 years, .. - rather than 22 years of - service, that he would -have been more likely i-to have!. received a severance payment. Mr.- Mort9n. '4enied having' made such a s.tatement and said -that it' was mo.r;e likely that he bad said to the grievor tha:t if Mr. Stevens was nqt en1:.+itled to a \ severance payment when_ he left hispo~~t~on after 7 years with City -Ambularrce to follow an!.employ~ent opportu.nity else- where-, then- likewise, the gr~eY0r -wo~~d,not have been entit- led to a severance payment. Mr BergerQn fi.led his -grievance on or abo~t May 13, 1993. I-nearly:- May, 1993 an evaiua-tor at the March-t of Dime's \ vocational Rehabiliation Centr.e concluded that Mr. Bergeron was "not competitively employable" at that time "based upon his work perft>rmance while on ass-essment. and continued physi- cal pain.and discomfort" (Ex. 9') . The grievor said that he , -------- J - / 3 is currently in too much di~comfort top~rsue the possibility " of self-employment inft home bookkeeping/accoun~ing service. On the advice and with the assistance of one of his doctors, he now receive~ ~"Canada Pen~ion Plan Disability Pension. M~ Morton said that the grievor's card lay on his desk .for' some mont~s- ~fter th~ grievor left it with him. Mr. Mor- ,- tqn did not enter a ~ d,ate of separation or the reason that Mr. Bergeron's. ID c~rq was. retourne,d on the next quarterly Human Resources Inventory, upon whfch changes were to be entered ~and returned to tl1e Mini..stry of ~ealth. Mr. Morton advised ) thatfotmswere not yet aesigqed for that purpose, and he understood that because the grievor was a Workers' Compensa- tion claimant, the <employer 'was obliged to hold his position open for 2 years anc;l qou).d not remove- him from the Human R~~6~rces Invep~ory for that p~riod of time. He also said - that he did. not repo~t the grievor's separation and return of his 10 Card out_of concern that if the grievor returned to work due to an unforeseen recovery, he would have lost his "grandfathered" status, and would have to qualify as an EMCA in ord~r tQ be ~mp+oyed again full time. The grievor's name or . ) . -....._ \ ~ppears o.n the H~an Resourc~s Inventory dated september 27,- - , .-.;: r 1994 (Ex. 16) . - - 'T~e grievor testified that his wife owns a retirement I home,anc;i tha~ ]1e and his wife live at the home.. He said '- ...1' that he qoes occasional errands for his wife, such as writing - - a ~h~~pe apd ~roviding_ companionship to the residents. He sa~d th~t he does not provide bookkeeping services to the r . -0_' .. . home, i~ n9~ paid, and is .not actively employed. --;' . , The Collective Agreement between OPSEU, and its-Local 457 and City Ambulance Service (Quinte) L,!:p._ expired, on December 31, 1991 (Ex. 1) . On March 27, 1992, agreement on a Memorandum of Settlement (Ex. 2) was reached. -It is, essen- t.ially, a Centra~ Agreement pertaiing to certain issues com- mon to the participating ambulance service employers. Para. 9 of that 'Memorandum provides: 4 \ 9 SEVERANCE W< ...} J.l}' , All Collective Agreements shall provide the -;- 'following severance pay" .pr,ovi.s'ion.s, .except that w,here a c91Ie~tiv~_,agreeime:rltcontainla superior provisions, the superior provisions sharI remai"n in full forceand:effect: . - ~ , J SP.1 An employee with five (5) years service on ~sepatat.ion 'from' $mploymen-t shall be entitled to receive ,on s_eparation, seve- rance pay of one (1) week's pay per year , I - ef service', up to a -maxirt1.umof twenty-six ( 26); w~eks{ 'pay. ... SP. i Such sevei!'ane~ pa.y shall "'only 'be' provided ~n -cases of ~,$para.t.ton ,from employment due to: . ~' , ~ ~. -, (j:i) death_ of t-he -employ~e,_ ."" .'. "! ... ~-- '- fb) indefinite layoff, in which case the ~ emp~oyee m~st,~~iye his right ~o re- call from layoff,' ,in writing, as a ~c' condition'; of receiving severance i .; '_ pay. InqefiIlite l!iyoff includes a period of thirty-five (35) consecu- , tive weeks, i,j l <;.. f p. (c) retirement~ ~ The union's position;'~tated br~efly, is that a retire- I me~t within the m~aning of Para. ~ (c) inciudes retirement - - , due to disability~ The e~ployer's_positions~-stat~d briefly, are that the Ministry of Health views the grievor as art employee, and that i. therefore the necessary separation for ehtitTeme"nt uhder Para. 9 has not oc"burred, and if the necessary separation has ... _, i\,. occurred, the cir9umstances of the separation indicate that it is a resignation or a q~it, but hot a retirement! ~ i ..., The Ar9uments: - ' -~~ I, .. ~ -. For the Grievor : ~-)- } The! grievor separated by reason of re.tirem~nt and is entitled to severance pay. ~h~ parties' choice of words in Para. 9 of the Memorandum of Agrf'!e.ment" given the art?i tral L ~r l 5 1 background, entitle the grievor to a severance payment; that was the intention of t-he parties. In light of his disabili- ,. _~ t.y, the grievor decided to retire, to withdraw from City Am- bulance specifically and from the worKforce generally, and is unable to perform the duties of his employment becalise of his disabil.t.ty. - , ~ The grievor's evidence as to Mr. Morton's statement to him suggests that the employer's interpretation as to entit- - lement may depend upon the employee's humbe~ of years of. em- ployment, and ~hat the lower the number of years, the greater the likelihood that the claim for severance pay wiil be honoured. It i,s not necessary for the board to decide the -ca,se qn -t~e bas:j..s of the evidence in that. regard. Little weigpt ~houl9 b~ given to the f~ct that the Human Resou+c~s ::rnventory con-t~n~ed tor list the grievor as an em- - , ployee. All the othe~ opjective evidepce suggests the termi- _.' , nation of the; grievor's' employment. The Confirmation of r __ . Registered ~ensio~~Plan Te~ination Be?efits dated June 7, I J 1993, from Th'e- Mut-ual Group to the grievor (Ex~ 14) is con- sistent with retirement. The acknowledgm~nt of the grievor's claim for Canada Pension Plan Disability Benef~ts (Ex. 11) and the Notice of Entitlem~nt (Ex. 12) of" those benefits, ~ - addressed tb the- 9~ievor, and the provisions of the disabili- ty plan, which provide for payment where, substantial and se- v~re impairment prevents any gainful -employment, are consis- tent with ret~r~m~nt. A letter froin the Workers' CoIt)pensation Board indicat- - { ing th~grievo_:r: w~s _ul1able to participate- in rehabilitation (Ex. 10) and the case conference report which confirmed that he was not competitively employable (Ex. 9), demonstrates that t~e grievor ~eft the workplace not by choice, but due to h~s physical limitations, which were factors beyond his con- trol. He is not actively employed elsewhere, paid or unpaid, and the evidence points to a permanent withdrawal from City Ambulance specifically and from the workplace generally. - 6 Four linguistic aspects confirm the gr,ievor's entitle- _ i ment to a. severance payment under Para 9 of the Memorandum i pf,Settl~mept. , The first aspect was the triggering event /Ion separation , f~om employment". Although the parties could h~ve ~sed more :\ - restrictive language, e.g. "separation by the employer" or termination by t-he employer" or "dismissal", the parties chose very a broad term. In Re Prince George Board of School Trustees' and International union of' opE~ratlng En<;1ineers . ~ (' ~. (1975), ~ L.A.C. (24) 40 (MacIntyre) the phra-se "termination J other than cause" was consid.ered, and the following passage l' .,,-,.. is of note: - '; We' were referred to no previous case or award Whicl1 th;r;:,ows any light on "te;mination";qertainly none ,Which would contradict the general dictionary meaning of /I ending". T-hat ,being the case, there .s~e:m.s no reas,on' to read"in Cl ol}e~side~L m~aning to. /ltermin~tion/l faspecially when there are other words well known irt collectiva agreements, which carry a , one-sided meCin..iJlg (such- as dismiss, lay-qt.f, or discharge, op the employers' side, and leave or- quit-;' on the employee I s side'). Even the present _ collective agr~em~n-t 'between th~ parties provides, _ in cl. 1, for it~ termination by either party. - Termipati6n is a neutral word, and there is nothing in the' particula~ claqse to r~gu~~e _a sp~cial mean- ing to be attached to it. ~ ~ ~ The recent award of Mr. Wetmore in C.U.P.E. and_School Dist;rict no. ~6 (V~:ndrick grievancE!) ( 1_974), ... was on t.he .point whether an employee could have certain 'similar benefits "on r~tirement/l if he res~gned because -of a heart cQndition: The learned Chairman stated: "in the facts of this case it is clear his termination was not something -h~ yoIu,n-tarily .elec;ted, bu:t -rathf2!r .it was forced upon him by circumstances beyond his control. The~se -are circumstances mote consistent with . I 'retirement' tha~ mere ' t.erI1lination I ,or 'gui tting' . Realso did not leave foro"fher employment./I By anCilogy, -/I separation from employment" is -"also neutral Ian.. guag.e ,and the Earties could have_chosen .more spec{tlc wor:Q~~ il).g if the.y wished to limit the application of those words. /I,On separation from employment" includes a range of reasons for ~eparation, including retirement due to disability. The / \. ~ .0' 7 I l \ above pas'sage confirms 'the submission t'haÔéČthis was a retire- ment in bo~h the oI;'din~ry and the arbitral, meaning. -- The second linguistic' aspect c'onfirnd.:ng the grievor' s ~~t1t~e~ent tQ a severance, pay~ent are fq~rd in tpe words "severance pay" in SP.! and SP.2. The definition of "Seve- rance pay, Dismissal pay" at page 69 of Canadian Labour Terms .. '. (6th ed.) (CCH Canadia~ Limite~: Oem Mills,_ ~'975) provides _L -- ,. Severance pay, Oismis~al pay '; A4lump-sum payment by an employer to a worker whose employment is, permal)._en1;.ly ended, ,-- usually for cau~es ~~yo~d the worker's control. This payment is iri addition to any back wages due - the worker. See P 4661 forseve~ance pay upon t~rmin~_tion ~ward~d employees coming wi thin federai jurisdiction who) have completed five J. years of continuQ\ls ~_n,lplp~~n:t. Subparas. -'SP_.1 and_ SP.-z seem, to r~J.ate to ar l:ump-sum payment to a worker whose '13mployment is. "perman,~ntly e_nded" ,.' The elements 'of the a):>ove defil).ition of severance pay, i.,e. a -- 'lump-sum 'payment, by the emp19yer, emplo.ymeIlt which- is perma- nently ended., ~Il,df9r caqses -l;leyond the worker's ,control, are all p~esent ~n this -case. ~ In _Re McMu.rray Publishin9 and:-T~ronto~ ~ail'ers' Union - (1974), 7 L.A.C. (2d) 22_6 (O'Shea), ~eyerance pay was payable on suspension ~~publication, ~~le., {Q.r mer.:,ger. The grievor retired ~nd the issue was-w~ether he'was entitled to seve- - ranee pay.. Because the grievor was temporarily laid o.ff and because the company ba-q: not ~_evered the . employment relation- . ship, the board concluded that the ,sever~n_C:e pay was not payable. It i~ imp6~tant to~note tijat en~ttlement to seve- rance pay would only have arisen if, .the severance had been - pennanent. In Abitibi Forest ~roducts and Operating Engineers (1976),\13 L.~.C. -( 2d) 331: (O'Shea) the grievors lost their " . employment due to a strike by al).other ~nion, and claimed severance pay. The following passage, at pp. 334-335, y Abitibi, supra, should be considered: / " 8 The -concept of "severance pay" is intended to .soften the fini;lncial impact wt:,ich i~ occasioned by employees who are permanently separated or severed J from their jobs. If' an employee is laid off for an indefinite period because of lack of work or "lack of-orders" and there is'no rea~~nable anticipation that the employee willb'e recarled withlnt:he fore- seeable future, such a Lay-off istantamoynt to a termination of employment. A contingent {eturn-to-wprk precluqed payment of severance . I pay in Abitibi. The need to soften the financial impact is present where retirement is due to disability; such circum- stancesa!=,e ~:nalagous to a permanent lay-off. An objective standard applies.. If it could be reasonably concluded that both parties expected the termination of employment to be ~ permanent when the grievor left. his .emp1 oyment , the purpose of the .severance ~ay provision. was .t~iggered. In Max ,Factor Canada and U..5. Wio<r' Loc. 9050 (1988), 33 1. . A.C . (3d) 2-7 4( S inunons-), t~he gr ievors .claimedbot-h the f severance allowance and the 'ret:ent:i.on of their_ rec'all rights. ') Arbitrator Sinnnons concluded -that tl10se :who.- gavenup their re- call rights were entitled to severance ~paY" and thp-se who re- tained them were not, because "severahcedenotes a complete separation of the employment relationship" (supra,' -p. 276). The following -passage, at -p. 278 should 'be, noted: - - U~fortunately, 'in today's labour relations set- ti-ng where. the two terms under ~discussion are so common~Y used and understood, it would take much clearer language than presently appears' in art. 24 to adopt such a position. ~ I accept -the ~onunonly I _ h~ld view that a severance allowance is 'n~rmally provided to employees who have their services ter- _ minated with no hope' of recall -through rights, such as seniority rigpts, which tQey may otherwis~ re- tain.The term-ray-off is so widely accepted in 'the field of labour relations as meal)ing' a reten- tion of certain employment rights that ~ would re- quire very clear language in the collective agree- ment before adoptin.g the position that the union.. t,j, :- ha~ aqvanc~~. While ~ lay-off may eventually re- sult in a termination and thereby res~lt in seve- rance allowances being required."to be .pettd there are certain ~ights that continue to exi~t until that e~entually occurs. I ~ 9 - I .1 '\ ...... These cases show that there is no entitleilient to a severance .' -. -:. :-,., [" . - -payment where the- employment relati:o~ship is not ended. In i _ _ · ) _ :,":his _ case, _tqE;!_. empl.oy:meh~ ;relatiq~_Ship wa: ,permanent~y se~er- , ed, and the gr1evor reta1ned'cont1ngent r1ghts. ~ f1nanc1al \ , .'~ t- i. - .~. .-i blow resul t~d, J"hiSh -the severanc.e payment;. was intended to cushion. ~ , -The Division-al Court qu'ashecl,the Employment Standards decision in Telegram 'Publishinq Co. and -Marc ~~~llinq & Got- tlob Ess:ig, (:-1912.) _1 L.A.C., (-2d) 1 (Car~~r) on. grounds not related tO~4he ~a.tter in dispute before us. The good state- ~,. ...- . , -- ments of; l'aw ~~n "pr~of., 'Cart.er '_s decisiqn :regarding the purpose ,and funC1;:,ion of J)'e~erance pay, at pp. 16--17, supra, should be i - - - considered: ,~_ .' In t1~e -case of botl1 claimants, there existed ,atrthe time of their b~ripg co~lective agreement provisions relating tp, severance-pay. These provi- sions were incorporated in. their individual con- traq~ of employment and were an inducement for them to co'ntinue to work for the employer. what they r werEf'promised was a deferred bene1=it, payable in t~e situation wh~~e ,the ~mp~oyer te~inated the employment relationship. 'Atthough this'was not an immediate benefit to them,it was nevertheless a ~ bene~it-earned by their contjn~ed e~ployment with the employer, and a benefit bounted'upon by the claiman-ts as they continued to pr_ovicl,~ their ser- -- r vic;:es 1~_0 the employer. In, e~fE;!c::,t, the promise of severance'- pay was very much like- a bank account in which depos:i ts .were made by the,eII:lplqyer gn_ the bas~~ of ~he employee continuing to render ser- vicel~f. The deposits- in this account could be with- - drawn' by the 'employe~ at the time of ,di~missal, the time at which he would have most need of the deposi:t~. - - -- . ; The fOllowing, at p. 19', supra, should also be ~ considered: - ~ +'::Ir.. ,~ There appears to be ~itt~e ju~ti;tication for giving the severanq~ payprovi~ion ,a more restric- ted nieahing. Severance pay 'recognizes than (sic) ., an ,employee does make an investment; in hi~ employ- er's busine~s--the extent of th~s investment being directly related to the length of the employee's ) service. .. . Upon termination of the employment relationship, this inv~stment of years of service is lost, and the employee must start to rebuild seniority at another place of work. The severance \. 10 pay, based on length of service, is some compensa- tion ~or this loss of investment. The employee will lose this investment whe'tller he is dismissed f:or .reasons of health, 'or, because staff is reduced ~ecause of technological, in~ovations, or because the business is completelyclos~d. In all three cases, he will lose hisinvestm~nt, and it seems - reaso~able tA~t in all three 9ases he shoulq re- ceive at least partial compensat{on in the form of severance pay. prof. Carter's~ remcrrks on the dif.ference between the ,en.... I - titlement to notice -of terminaDion anffi'the entitlement to sev~rance pay at p. 21, supra, s'hduld 'be consid-ered-t Severance pay... . ....;~~" "\ ~ is compensation fot the ,- ye'ars of service that 'an employee has' devoted to- an employer. As was stated above, the long service employee who is terminated ,loses a great deal as his seniority rights are extinguished., ;Severance , pay, to some extenticompensates the emp19yee for - that loss while notice simply gives him some ad- vance warning of his dismissal-'7and gives him a better opportunity to loca~e a~other job. Whejt the parties c;:'hose - t.he term 'n si3v~rance- pay" they intended "t' that a lump sum b~ paid- on per.manent(t~rmipation of the rela- tionship and- compensati6~ fo~ investment in~the relationship, - 'should ,one of the events occur. ~ The other Fel~ted cond~tions entitling an employee to - - seVerance~ pay, ,i.e. death and permanel1t. l~yoff, have the same sens-e of pePna~ence and- ot b~ing cifc~mst-ances beyond the ~ emI>}oyee I s- contrc)l, and are: therefore) t.her third linguis-tic aspect confirming the grlevot's etititle~ent to a severance - 8 payment. In the parties" MetI\orandumJ-- enti tlemerit to a seve- ~ " " rance payment does not depend on wn9_ dip wh~t resulting in th~ separat~Qn, buy rather; upon the qeath .o~ an employee, upon indefinite lay-off, and upon retirement. The conditions , in SF.. 2 do not depend on someo~e-starting the ball rolling, ~ ~nd are- not dependent u~qn the ac~i~n o~ dne or the other ~ party. Rather, they -have in common a definite and permanent ....-.. end 1;.0 the employment relatj.ol)ship. -Under the indefinite lay-off language of SP.2 (b) , if an employee waives his/her recall rights, $ hie is entitled to - I I \. . ( 1 1 r ' (severa~ce pay. If ~he grievor says he cannot ~ork any longer due to disabi~ity a~d th~ employer agrees, their discussion \ do~s npt mea~' severance pay is not payable. Ail 3 conditions , /""'. 4 .... .... in subpara. SP 2 have ~n element of involuntariness, as does I ~ - t~e grievor's disaRility, e.g. a) death, b) lay-off, and c) _ Y, .... - , 1I forcib1erretirem~nt at a cert~in age or when the body says L ~~:' \ "- so. ~ The f.inal lingu;i..l;Jtic clue as to the l'arties ,- intention\3 is found in their choice of the word "retirement". They ~. could have chosen more restrictive language, but chose not to limit the clause. This suggests the patties ~rnterideQ a broad -, range of po~sib;i..jities. I~ they had intended that a seve- I,... r rance payment be payabl~ only upon retirement on a pension or r ~ retirement at age 65, they-wo~id have had to bargain for that , ~ ~ . .... .I-, --. _ language. ~ i~ti;re;nent init~ated by an employee ~is s"till a ~~ r ~ t retirement at law. In McMurray, supra, at p. 231, Arbitrator o"shea remarked :.f' . -') .~. ~_The dismissal of an employee is a mana- ~eri~l act. An 'employee may~quit his work or re- tire from employment or eve~ give cause for dismis- ~~~ bu~ he cannot perform the act ofdismiss;i..ng ljinjf!slf ;,- _ t - Arbitrator O'Shea recognized th~t an employee retires him- self, and that retirement i~-an employee-initiated action. -In Gov!t of B.C-.,. andB.G._ Q9v't Employees' Union (1973), 20 "- L.A.C.(2d) 149' (tevey) it was determined that retirement is an act of the employe~ and the ~mployee's ~ntention must be . '" considered~ In using the word retirement, the parties inten- ded retir~~~nt ~t the option of th~ employee, and 1? this case, the grievor intended to retire The following state- ment at p. 157, ~-upra, should be cons~.dered: / - The question of whether or not an employee retires is one directed wholly towards the em- ployee~ Re:t-ir~ment is a unilateral act of the emplbye~ if it occurs prior to any statutory or contraettlal, ~_ge :J,.imit,. such as is the case here. -4 :.. -- - 12 We note that the foregoing observation was made in the context Ot a case in which, following her inquiry regarding her ~ligibility for' a disability allowance, and after gran- . ~. rl "'~ ting her a disability allowance, the employer advised the , < grievor by letter that she was "~ r~tired empioyee i~ receipt ., ofa superannuation allowance. " , whereupon she wrote back . 'f ,. requesting them to hold off on the~disability pension as -she did. not w~sh to retire at that time (p. 152, supra). - In Miller & Hart, Inc. (1950), 1~ LA 300 (Kelliher) it " was determined that an employer was not eritit-led to conclude from other actions, absent an express i;tention by the em- ~ \ ': 'l. p~oyee to r;t~r~, ~hat the employee h~d in fact retired. In __ ..>. _ I _ ~exall Drug Co. 63 LA -966 (Hellman') the arbitrator differen- - . tiated a quit from a re.tiremen~ and was of: the opinion that a I >- "C ;~. ). retirement cannot be foist~d upon a gilevor independent of - { . "-,,.t his express inten~ion: The followih~~ ~:m p. '9'67 i~nRexall, supra, shQt;I,+,Q. be cOI;1sidered: ~'( ..i. .. -- :';);-4_ -- The intent or desire of an employee. tp retire ~ o \ .:i,.~ subjective r::~qy.iring objective manifestation. A pen~on usually -.wishes to Fetire for one of three reasons: d ;j" ~ - - ~ .~ ~ " (a) he is financially sequre; - - (b ~ he is entitled to ret~rement benefits, and/or .f - Cc,) he is disab;I.~d. .d. ~ -' A person--wi1.lquit,ior .resign,--from a job for a multitude of ~e~sons which can b~ ~asily differen- tiated from retiring. _'- In Rexall the employee was claiming vacation pay to which he was el1titled under" the~.collective agreement" as he -had not -- , taken the vacation to which he was entitled for the period in which he had retired. ..._~ - . The definition of "retirement" 'at p. 66 or Canadian- ~ Labour Terms; supra, - " Permanent withdrawal erom -the labour force. Delayed retirement is0~ithdrawal after the norma1- retirement date-, usually with the con- sent or at the request of the employer I \ , ~ 13 '-. D~sability retiTement ~& wibhdrawal- before the norma-l ret~rement age l'>!3cause of I physical incapacity. Early retirement is withdrawal bef6re the normal retirement ,dat'e-. is the generaJly acc~pt~d qefini,tion o.f retirement. The authors note "disability ret'irement" wit-hili the definition of L J L. , retirement. When pa+'t~ies ,'t.Q a collec,tivec,lgreement want to specify an age, t~~y usua~ly db.io irl tHe collective agree- ment, and in the absence of such speci~ication, age is not to v. ,- be read in as the Qlily reason fot retirement. :;-".: -if" -.In Specht v~ The OueenL~975] C.~ G. 126 (F.C. ) the Federal cburt considered ~etir~m~nt and. applied the ordinary meaning of ret~rement, 9-t p. 133: - . .-.The plaintiff did not retire or go~ in.t<;> ~etire- ment from his occupation with MacMillan Bloedel withrn..l.the ordinary' meaning of "-ret-ire.!' or "retire- ment". That- is, Q.~ d~d n<;>t withdr.aw fr.om his em- ployment because he had reached a mutuallystipula- -'. ted age,-'or generally'withdraw from his occupation or busines.s acti-vity,_. I have obtained some assis- tance on this point, in endeavouring to ascertain the ordinaryrneaning- 'of !'r.etirement", '-from dictio- nary d~t~pit~on~: - The Shorter .Oxford English Di'ct-idnary .( 3rd ed rev};:-- "wi:thdrllw?l:l. f.?=,om oqcup~tion. pr business acti vi ty ':" - - . -. - \ The .Living Webster ( 1st ~dr "retire" -- "to -- .withdraw from business or active life" .... ... . .J p ~ f' , ~ In the, instant..qase, the _grievor withdrew from his occupation withou~ in~~nding_ to resume i~ or any o~her occupation. The grievor's actioI).s were therefore not a resignation" but a retirement .' c \ In City- of Lackawann~. N~W York (1982), 70 LA 840 (Rill) the grievor, ~ho wa~ hurt .in the course of .his employment and never returI).ed to work, retired under State accident disabi- lity benef.its. The contract entitled an employee who worked a minimum of 19 years full-time tQ be paid, when he started retirement, 50% of his unused, accumulated sick leave. The grievor bad ~at~~fied the minimum 10 years full-time employ- ment. The employer argued the grievor had not retired within ( I ~ 14 the- ordinary ~eaning of the word At p 842, supra, the arbitrator determined t:hat where the term .. retirement" is left broad, is should be GQnst~ued_ widely: It is the opini'onof this Arbitrator that if th~ City i~tgndecL tol,imit Sec,tion, 47 to "ordinary" retirement it could or should have d9ne so particu- '- larly when testimony showed that it had made diffe- rent arrang~me~t~ withoth~runions. The City can not be viewed as an unskilled negotiator in such mattel:s" _. It~gert~inly was qot incumbent upqn the. union t;q encumber or limit the scope of the meaning of retirement or even tQ~Linsist that - its meaning be speGtfiqally~enla~ged to ipcl4d~ "aGcid~ntal disabilityr~titement i'. - - There was evidence that the city had paid out someone else, out the-case turned on interpretation, not on payment out. In ~i~X,of Fo:r;t bO~ge_ (1989J 93 LA 759' ( Cohen) , although .!. the griev6r did not meet ,the requirements, under the Iowa Code -, fo~ retir~~ent, the arbi~~~tQr Gonclu~~p t~e parties had not ~ incorp6tate~ the statutory requirements ,and that the ordina- I.... ...... ,.... ry meaning .of retirement ,aBpLLed.) ~ " A withdrawal from occupation due to disability falls within the -orginary meaning of retirement. A narrower con- struct'ion was not the' par-tie~' intention. The absence of - - other words indicates that the parties chose not to include them -and chose not to' limit the meani'ng of "retirement". Be... cause the evidence indicated that the grievor's withdrawal from the workforce w~s~ikely to be permanent, the ev-idence had made out t'he purpose of severance pay as discussed in Abitibi, supra. The pu'rpose of retirement, within i:ts ordi- nary meaping, was also'made out, on the evidence. , Mr. Flood askea the board to allOW the 'grievance, as well as declare that the collective agreement wa~ violated. He asked us~o declare that the griev6r is entitled tq , , severance pay on the bas~s of retirement, and, since there - may be some discussion as to whether the grievor is entitled to 20.3-or 22 weeks of pay as his severance payment, to rem;i..t '\ the issue of the number of weeks to the parties, but declare - j 15 , 1 that'the grievor is entitled to a severance payment of a num- , ber of weeks to be determined by the p'arties, - with interest -,.. ....:f') 1 calculated on. an annually compounded Basis from April, 1993, i , ....,.... \ Lr"~ ! ......, rather than on the Hallowell House formula. He'submitted ~ - that the sever?nce payment provision contemplated a lump-sum 1 - pa~~nt payable~ort separation.~ He ~eq~ested the 'board to I ~.. re~ain seised with respect to implementation. - ., \ For the Employer: The 'cas/e -may not turn on the facts, and the board may be , I , J~ft with. int~r~reting the ~~~orand~~ of Settlement in the absence of ex:trinsic evidence. - ..- Mr. Morton 'IS letter to Mr ~payett'e was simply a -query to '\ the func~ing body which Mr., Morton und~rtook beca,\ls~_ he felt obliged to inquire after the issue was raised,." J -There haq~been no separation from employment. The Human R~soUl;:ce~ Inventory (Ex. 16) is the ptimary document. Mr. -- Morton clearly-- justified why the grievor-was still on the in- r r .-y " v~~tory. M~~ Morto~ put the grievor on a medical.leave of absence out~of cQnc~rn that-he had been a granctfathered at- ";, /' r" _ tendant since 1975 and if for any reason he sought to resume ( -,. - ~ ~~s employment, !~ all ties had been broken, he would not be able~-to return unless he obtained certif~cation, as had oc- ,. ~-;. f ,.,. The inventory is indicative of curredin Mr. Stevens' case. some th~ead of~continuing employment relationship and a com- _ --: ::i , l plete se~aration from employment bas not occurred. '. If a separ~tion had occurred, arbitral precedent does not support a payment and the normal~usage of retirement does not include disability retirement. A lump-sum payment does not necessarily arise notwithstanding a permanent severance ~ / and a provision in. the col~ective agreement for a severance J ) payment.. In some cases there was no entitlement to that - . , / payment~ ~ In 'Rothmans.Benson & Hedges Inc. and B.C.T. (1990) 13 ) L.A.C. (4th) 154 (Charney) .the board cons ide red whether em- ployees wbo were receiving long- and short-term disability ) ---- - 16 benefits and Workers' CompensatJ-on benefits and who were laid off during a plant c;Losure were entitled to severance pay. Arbitrator Charney stated that the purpose of severance pay was income support_, that payment to employees receiving those , . f' ' ~. benefits would be a 'double pay~ent, -and that severanc~ pay is ~ot properly.payable pntil their disability is over. 'At p. :. .{ ..,. 260 in Roth~an_~, the decisio~ refers to McKay v.. Carnoco Inc. . ' ;' (1986), 24 D.L.R. (4th) 90, 53 O.R. (2d) 257r Ii C.C.~.L. 2516 (O.C.A.) and sets out the court's statement: M .-The' right :to: dis.ability. payments is inte~deq to p~ov~de incom~ to t~e appellant wll'en h_~ is unable to work J The purpose of requiring reasonable. notice is to giv~ the di~~~~sed em~loYee an opportunity to find other ~eIilployment ~_ I. Imme'diately fol1:ow:tng the above pas~age, 'the arbitrator concluded: · - Therefore, by anal,ogy;-f.' _se~~r~nc~should not _ , commence until the disability is over. : .tjr The purpose o~ .severanqe pay is to mitigate employer-initi- ../' ~; J: - pt.ed ~~tibns. ~t does not apply to~vbluntary situations creat~d by employee~. Pe~an~nt s~verance ~ se is insuffi- cient to au~omatically trigger entitl~ment to a severance payment . ~ In Mai~landEn9ix:e ~ebuilders and Teamsters' Union (1988), 5 L.A.C. .(3d) 90 (MacIntyre) the arbitrator concluded '- .- that. under. tp~ clause ang cirFu~stances in that case, volun- ...... ;;1 ,_ . -" ,. tary retir_ement at (ige 6? fet). within the ";esignati~m" pro- vi~i(;m! Arbit.rat.or Mq.s=IntYf'e. distinguished hi_s reasoning in ~ Prince George, sUPFa, fro~ his reasoning in Mainland, -based upop. t~e difJerence ip. the ;tangUflge. und,er consideration and stated at p. 94: j {, ~.. We- can ~g~fte th~~ retire~ent could, in some circumstances, be a form of termination. But one -w i has to do the best one' can iri;. each set of circum- stances and with each collective .agreement. In the present case, if there was no cl. (b), mentioning resignation, we might agFee with the union. How- ~ver , it c;loes seem- that even if Mason I.!:J act was within the conce~,t of termination, it is then just I I ( ~" j 17 - as much caught within the concept of'resignation, and ther~tore excluded. Ottherwi~e~ ifMr~ Mason decide~ ~t age 49 that he ~id ~ot wish to work any 'mdre, and resigned, he could ch3.im severance pay. wi tpout any m!3ption o,fag~~ ,65 in the col)_ective ;- agre~ment, there ~s nothing magic about quitting at 'age 65 There is hot even any evidence that a -7m~-jQJ:"ity o.f the emplpyees ,pic]c .t,pat date. Futther, if the union's argument is valid, it would not mat- '-' ter whet-her there were a pension plan or hot, since retirem~nt would b~ included in termination and not .~ excluded in resignation whether there were a pen- Erion 'pian> or not. If there- were evidence that the , -h seve;faI).ceplan was s~pposec;i to 1:>e a.., ~ubs_titute for a pepsio~ plan, that coUld be differ~n~, put there was no $uch evidence, and -severance plans- are tra- -ditionally designed to mi,tigate emplpyer-initiated acts. Under the circumstanceso! this case; we must -- concluqe tha-t Mr-.Ma,son_' s volllnta~y retirement at - age 65 does fali within the_ "resignation" provi- sion, and that he is not entitled-to severance pay. Lackawanna -, supra, tSJthe only union -case truly on point,Y-but it can- be distinguished. At p. 841~ supra, there -- had been g"ome evidence that the purpose of the provision was to encourage ~arly retirement and -to avoid anticipated lay- offs. Also, the context in which the clause in that case was negotiated -was, very rel~vant to how it was interpeted. At p. 842,-' supra, the City was 'said to have made different arrange- - - / ments with other unions. Such a factor makes a considerable .~ 'dif-f-erence to interpretation. The Lackawanna.board made its determination because of the extrin'sic evidence presented, whicb is not pr-esent in this case. In this case we have no context and ~ust fall back on arbitral principles of inter- ,. pretation ,a-s ~_ound at pp,. 121-29 of Palmer apd Pa,lmer, Col- lective Agreement Arbitration in Canada (3rd -ed.) (Butter- . - .. _. " , . worths Canada Ltd.: Toronto, 1991), and dictionary defini- -;tions'. ,Orie of the g,eneral ;rules o~constructionstates that words are to be giv.en their ordinary -and plain .me~ning. The word "retir.em.~ntn does not ordinarily include disability re- tirement. The exception to the general ,rule, i.e. if the literal meaning of words leads to an absurd result it may not ~ -.--- - -----~ ~ 18 b~ usedj is nqt present. Th~ ~mplQyep is concerned that the , provision would be viewed as a joke if someone in the grie- I' - .;. . -I vo~'s c~rcu~stances could qu?l~fy ;~r, s~verance pay which was intended to be payable. ohly on retirement. Anqthe~ rule. of construction is that the collective / t agreement is to be 'reacV .as a whole. There was no re.ference , ' ~n the collective agreement to disa9~lfty retirement; the situation was the .same as in Fort Dodge, 'supra . The rule of ., cOIlstruct~onstating that whe~e two.p6ssJbl.e meanings ar~ open, efficacy is a donsi:d'era'ti9R, leads to the consideration. \ ,).., ~ of:::; th~~ purpose of seve~a-nce' :pay. In view of that considera- 't'ion, severance pay is not properly triggered by the grie- vor's circumstances ~H ~ The ordinary meaning of retirem~rit is.. found in Canadian Labour Terms, supra, as '''p~bn~ent 'withdrawal from the labour . . "--. ., .) fo~c~". D~s~l?~+-ity :r:et~rement ~~. a separate and distinct '1 term, and is no.1: the no~rmal meaning o;f "retirement',",. ~ P. 1644. of the Random HouseUnabridged Dictionary (2nd , ' 1 - - - . - :" . - . ed. ), (.Ranqom House Inc.: Toronto, ~.993) P~9v~.des t}'lo ~ppli- cable definitism~ of. "retire": I ....).. ' ..J 3. to withdraw from'office, business or active lif~, usually bec.ause of .age; ,to retire at the age -- of sixty (emphasis in original). 8.. to remove fr.om. active serv-iceor the usual field of activity, as an army'officer or business executive.' ,. The usua'l meaning of retirement is :predicated upon age. If the parties....had c~bsen to do so, they could :have clarified , what they meant. where they had failed to-clarify what they meant, the usual and ordinary meaning should be :given to the. word. ~ ~ The definit.ion of ret'irement at p. 133 in S'apk'& poskan- zer, Labour Law Terms: A.Dictionary of: Canadian Labour Law (Lancas'ter House: Toronto,'- undated) is of some note: retirement termination of employment on reaching a specified age; the terms of an employment contract ~ or c911ective agre~mentmay d~ter.mine whether I .; 19 ~ ret~rement is voluntary or cornpGlsory, or whether ,p~ovis~on exists for early retirem~nt o~-continua- , t~on ~~ e~ployment ~fter retire~ent. age; however, ~ these arrangemerits are subject to human rights legi~lation which in mQst provinces restricts the right of an employer to i~pos~ 9omp'u+~ory.retire- ment until age 65, and tinder the Canada Labour Code until the "normal age of retirement" for employees in similar positions; in ~ll Canadian juri~~ic- tions, human rights legislation inake~ lan'-exception ~ where age is a bona. fide~_ occupatiog.al qualification I By 9.hoosfng only the wo:r:si ~,-" retirem~pt", the parti~s agreed to use' the age factor. -- Motor.ways Direct_ and Teamsters Union. ~oc. .~80 (1988), J.5: L.:A. C. (3d) 11 (M-. ,PichE!~) sununarized the elements of "resignation" at p. 15 as a "freE!.a~d voluntary act of the employee" and at-p. 18 as _including the presence of both an objective element, ,i.e. a verbal or' written 'st~~emt;!n1; or an - 'act or ,course of conduct consistent with resignation, and a subJect~ve. element, i ~~e. ;:,theint~ntion or decision- ,of the employee to resign. In the instant case, a resignation oc- cur red. The subjective intention to res~gn was present, and the obje'cti ve conduct manifesting an ,intent or ,desire to car- ry- out the inte~tion could:be found in the docum~ntation the grievor left with Mr. Morton,- i.e. the return of his ~.D. - - badge, and in his claim fQr severance pay. Therefore there -was. fa resignati:on "-and not ar17etirement. "- It is possibl~ to conclude on the evi,.denc~,< ~hat -a disa- "bil'ity retirement had occurred., -However, the -~greement has not- spoken to- disability retirement because-it lis n~9t within the common usage -of "retirement" and is not c9~sistent with the purpose of severance pay. Retirement ~~ ~n employer- -initiated action. The union argues that retirement tncludes a matter beyond the employee's control. To' find ~hat the parties intended to base ~etirement on age is cQnsistent with both parties' statements of the pu,rpose of severance, pay. Re- tirement because of age is just as much beyond the employee's control as retirement due to the arrival of age 65. , ) ~ ~ -- - -- -"-- - - ~ -..- 20 The gr~evance should b~ dismissed. The grievor has not established -entitlement to severance pay under the language of the i,~gr:eement, ~nq, in Arb~tratorCharney's view, the award of severance pay in the circumstances would amount to a w~ndfa~l una#tfcipated py the parties. , 'i:~ -, :Replyof the Union: -- _,J .. , -;',' : ' .,- All the,' objective evidence establishes' severance of em- ~plbyniEmt". The employer's Human -Resources Inventory cannot be foisted uP2n the gri~vor. There had}.,'been noevi.denc:::e of a t disc.ussiorre~betweEm- the employer and the griever on the sub- j act "J6'f the gr ievor reinain~j[ng -on the tnven'tory,,- and, retaining the statusofemployee-. The-.-employer cannot argue that there had -been ;I;1o, separa- tion.. from employment, and', argue in th~ -alternative rt'hat there was -a severance. The- -uniop's cases .show t'hat. the pu~pose of seve:t:ance pay goes beyond the -employer')~s positiont_h,9J:. seve- rance pay-relates to_ employer-iot tiat,ed acti_ol1s.. In this col-le9tJ:.ve agreement, 'severance pay is notpayabl_e 'only in the event of an ;~mployer-ini::t.iated action" unless, ~he' par- ties irite-nded that severance pay was _payable. only ):f the em- ployer ;caused the' ,employee's ldeath_. 0 - ~ The clau,se in Mainland, supra, r:e~erreq to e~ployees whose employment- is~ terminated. The arbit~ator sai.d that -there was 'no -refereqce "to retirement, only to r,-esignation, as a ~esult of which the case ,dealt only with resigQa~ion. Main- land indi.cated that if -tne ~word '! retirement" had. b~en in the agreement, ...t'he result would have beeni'different. Because the I \ ' the exception 'word "retirememt" is in the instant -agreement, -to which ;-the Arbitrator in, Mainland ref~rred is present in this case. ~- 1~" ,- - , Rothmans ; supra, wasa;n int~rest' arbit~~tipn~_ -1. Th~ Ro:th- JI-', ~ 1. .~ board specifically degliped t9 ~n~erpret the parties' agreement, and was determining what .bargain t~ey should make. In this, case, un:t.ike Rothmans" whE;!re. thegri~vors were on disability benefits, etc. at the time of the lay-off, the em- I , 21 ployee is at work and must retire due to d~sability. There was no mention of "retirement-" in Rothmans 'and therefore - Rothrrians is of rio assistance-- in this case. In Lackawanna, supra, the arbitrator specifically said , at p. 842 that he was not deciding the case on :the basis of t - The arbitratbr said it context, but only on the language. would be ridiculous to force the union to bargain fot speci- fic langu~ge- and that the party who gets the general language gets t.he- benefit' of it. In -the ordinary course of collective bargaining, parties bargain for limiting language. The def1- nition in Labour Law 'Terms, supra, provided by the employer, indl.catesthat ,.." ret-irement" means termination o-f or-- wi t-hdraw- al from employment usually because of age. The union's in- . terpretation would -not lead to an absurd result. The em- ployer did not pursue the grievor in evidence with regard to the actuality of his retirement because it knew that hisre- tirement was actual and that his condition was no joke. -t - "'~_r' ,. 1 "because of "Retirement" shou'ld not b~ limited by the words age", particularly in the absence of extrinsic eviaence .- establishing that the parties had intended that limitation. t.~ ..- ConcLusions: -......!~..... ~ - -; -\- ~ ,. - On all the evidence before us, we conclude that owing to the work-rel~ted accident which the ~rievor in9urred on March - he was left-with a back disability which resulted 20, 1992, in pim being unable to resume any form of employment, and - - j. ~hich has left him with little likelihood of-being able to .~ .I resume any form of employment in the foreseeable future. His current pain and discomfort are a most unfortunate and very ~ r real outcome of the accident. . \ ... . - The grievor '-s evidence as to Mr. Morton havi,ng made a statement implying that the empl9yer was more likely to ho- nour a claim fer severance p~y from an employe~ with 7 rather than 2~ y=ars" of e~ploymemt was denied by Mr. Morton. The evidence did not establish that in circumstances similar to 22 the g~ie.vor's an empleyeewith 7 'years .of employment was ( given a severance, .payment. Accerdingly, ne purpese weuld be served in d~t'ermining wh.ose versi.,Qn_ .of what was said is mere likely te pe ac~u~ate, and we draw Po' inference frem the evi~ dence befere us as te the empleyer's metives in determining ~he~Aer .or n.ot .it weu~d heneur a claim .fer a, severance pay- ment in this ,~as,e,. The cenfirIl\?-tien .of R~gistered pens_;len Plfa,n Terminatien ~en~Jits (Ex. 14), qecuments, a transfer. .and dE;:!n~_al .of a pay- .out .of a large pertrien .of the griever's RSP 'untilbe ~eaches the ,age .of retireJ;Ilent tl:nder ~tatut_e.or J;egulat:ien pertaining ~..- ,- ,. .- te the dispesiti.ons .of Regi~tered_pensien Plans. We are .}:<- therefere net-..able tecenclude that the letter/cenfirmatien . ... 'I ~.. .. . '1 l i !J ' . .,., . . is necessarilyqensi~~ept with retirement within t~e inten- tien .of the par~ies in theM~mqran.dum .of- Set~~ement. , , '~t - _ ~ We~find that the fact that Mr. Merten did net send the , . . - .....,... ~ ... ',' ".' .... .' i ,- I . date .of the griever's "separation" te the Min~str:Y of Health and its cO,nsequent ~ack of ~ppearance o~ the Human Resources ~.n:y.entory .of little sign,ificance in 'this case. Altheugh the - , , grieve~~remained an "empley~~ en paper" beca~se he was net de~eted fr.om the Ministry's Human Res.ources Invent.ory, we ~ . cannet cenclude, in all the circumstances, that the gxiever _remained an empleyee' in fact .or in law. 'We c.onc1 ude,. en the eviqence ,befere us, that toyard the end .of April, 1993, the - J grievQ~- expressed an i~tenti?n te retir~r. and that in handing I , in pis ID' card and in stating his, intentiens and in net re- , , turn,ing te W.ork, he _permanently ~ithdrew frem empleyment with Ci t:r Ambulance and ~rem the werkplace generally-. -We conclude that by his actiens and intention t.o reti~e, the gri~ver ef- r ,~ fected ~ "separatien frememployment". We have carefully cens1dered the-parties' cases and material ~nd submissiens thereen. While we do net aisagree " - w~th the reasening in :Prince George-,McMuYray', Abitibi, , Inc.,f Rexall or F.ort Telegram, Gav't .of B.C., Mil'ler & Hart. Dedge, supra, we find thOSe cases .of -~iinited assistance. in , determining the narrew issue of what the part,ies before us .r i i , 23 meant by "retirement" and whether they int-ended it to include a withdrawal from the work force due to disability ~ ~ - At the outset, Specht, supra, merits some discussion we note that we must approach th~ defibit.totl in that case with some caution. r, The collective agreem~rlt ana Memorandum - of settiement and the' evidence before us does not suggest that by "retiremeht" the parties intended the interpretation given to that word~uhder the Income Tax Act. I - , In Specht, when Mr. Specht's employer company; hf which he ~as the president, reorganized, he refused the position of ~ Chief Financial bfficer, a~d-characterized the $40,000 00 per "4 r f. ....} . year p~ received for the next 5 years as a tax-exempt pension on retirement. The Minister of National Revenue viewed it as a taxable $200,000.00 lump;;'sum settlement fot lossJof office. .;. , The written em~loyment contract set out, among-other things, that Mr. spech.ti would continue to be employed as president or, ~n other capacities as determined by the company to be in its -. best interest;' ~nd that Mr. sp~cht agreed-to retire at age 65, and would not te~inate his employment without -the board of directors' consent. He went on to other employment after -' leaving the .compa~y._ In th~t context, and_ in construing the meaning 6~ retirement in s:. 31 of the Income Tax Act, Mr. - - -. -Just;.ice <:;oilier _determ~ned :M~:, _Spech-t' s actions were a quit -rather than a. retirement. He continued, 'on p. 133, supra: -- -- The coritract of employment ,in this case (Exhibit 1) uses the words _"retire" and "retire- ment" in clauses 1 and 2. - Age 65 was stipulated, but exten~ions coulq be agreed upon. In my view, - "ret~~ement" was_ used by tbe parties in its ordi- nary meaning as ~et out apove: a cessation of or withdrawal from work 'bec~use of an age stipulation or bec~us~ of some other'condition agreed between I emPf.oyer~ang. empl,oye~. What the plaintiff did here I was, by agreement, re~ign. He did not, as I see it, retire. Mr. Justice Collier's definition of "retirement" was "a ces- - sation of or withdr~wal from work because of an age stipula- tion or because of some other c~fidition agreed between em- ployer and employee". Although in this case the gr1'evor -------.- 24 ceased and withdrew from work, he did not do so because of an age stipulation There was n9 direct evidencejthat he did so , "bec~use of some ot,her cqndition ~greed,,_petw~~!1 :mployer and em~loyee" ~ithin th~ mean~ng of Just~ce Coll~er's definition. That definit;i.,on merely returns \,lS to the problem of deterrnin- '\ I ;. ~.t -;.. .... ing whe~her the parti~s i~ thi~ cas~ agre~d th~t other condi- \ tions, bes~cies tp~ attainment of a statutorily-determined age, would constitut~ ~ retiremen~ ent~tlin9an empioxee to a sever!'lnce pa:yrn~nt" and ~f so, whpt those ot~er conditions we;r~. ~ ~ WedQ not disagree inp~inciple wit~ Arbitrator Rill's ~ ' ~conclusion in ~ity of L~ck~~anna,. supra. We note that at p. 841 he indicated that. there pad been "considerable testimony - ,- at _ th~,. hearing abc;mt the o.t~gin of tq.e seq1;ion" and about th.e negotiating. history of s. 47. We are unable to icfenti~.y the f?a,l:?sage, at ,p... .842 ~hat ll_ni.pp. co~nse1" 'submitt-ed specifically stqted that t11.e arPJ-tr~tq;rwas not deci,ding the case on the ~ , bas~s of context, but only qp. the language. At p. 84~ -Arbi- tratorRill stated ~ i At the: time o~ the. ~eg9tiation~ for the cur- rehtcQntract both parties were f~lly aware that there were three different types of retiremen~: ~ regular or usual .retirement, 4i~abiiity retirement and accidental d.isabi~ity retirement No limita- tions,expansions or'defii'1iti:dris~were suggested or adopted with the, result t4at~Section 47 calls for 50% of sick days to be paid when an employee with 10 years- of service takes retirement. anti then concluded ~. Hence, it._seems. td be apparent that retirement means jqstwhaf' it says? fega,tdless of the kind or classification of the retirement-'1:;.aken unless it is cleariy qualified 1:)y some limitation or by the manifest intent that both parties understood that the word shouJd have a meanino/ other than its com- mon everyaay meaning to every working person.- ,,~-..: ~l. "'f We note that we hav~ no evidence of the negotiating history ..... -r or of what )types of rE?tire.~ent the parties were aware. Hav- ing regard to the fairly consistent reference to the attain- .At. } ment of a cert,ain. age in the various. ctefini-ti9ns o~ retire.... I 25 r ment pre~ented, and the subcate~o~jes of ~etir~ment ~ecog- niz.~d within -those def.i,.nitions, w~_ <;ire unabJe to determine _.~ _ J wicth any certainty that the "common everyday meaning to every working per~on" or employer olf t~e u.r?-mod~fied term "retire- ment" is as brQ~d ~s Arbitrat<;>r R~ll stated in r.,ackawanna ~ , - - Turning to the employer's cases, in Rothmans, a letter ~6f understand-ing provided that "-a laid off employee will re- ~ c~ive severance pay ~n the ~oUht of two ~eeks wages for each year of service".- Para. 3tof the collective agreement provi- ded that employees receiving LTD, STD of WeB benefits "who would otherWise have been laid-off; will become (eligible for thesev,.eraqce pay pI_~n iipon presentation 'of- proper medical certification that they are fit to return to work". The union in Rothmans reli~d in: part on lhe passage in the ,::'ele- ~ case rep;odhced above, and 'argued that. "irrespective of the fact that [the affected employeeS] were in receipt of payments they had no ~easqnable expectaton of returning to work,' there'fore they.- should receiv:e severance pay". The par- - :; ties were agreed that the employees would get their severance pay when they carne of'f benefits"~'i.e. were ready to return to work. Arbitrator Charney eXPfe~sed the view at p. 258 that ~........ ~ one major pqrposeof severanpe pay is "income support during a perio~ of joble,sness", and t~at in the circumstances, re- ceipt' of severance pay by these particular employees "would be a windfall". ~e said, at pp. 258-59: There is no theory of Severance payor of fairness that contemplates paying these employees. The concept of a double payment for these employees is unfair. The, parties agreed as to what would occur in the event of plant closure in letter of understanding_ No. 25. The employer has enhanced it~ It is unfair to have the employer go further. In his conclusion, at p. 261, Arbitrator Charney emphasized the arrangement the company had made with its employees, and that the disabled employees were in no different position \ than other employees due to the company's decision to down- -~ I 26 size its Brampton plant than they would have been had there not been a down-sizing J In Mainland, supra, -the grievor cTaimed 'severance pay upon his retirement at age 65'. The award indicates' that there was no provision "in the collective agreement at all about retirement at any age". ':Phe severcincepay provision prov:Lded I -- .fa) Employees whose employment is te~mipat~d for ~ any reason and who hav~ ov~r ~wo (2) years employ- -- ment with the Emplbyer shall be entitled to seve- rance pay of. ... to _a ;maximum of thirt.~enK- ,ell 3 r w~ekl? \. ." - (h) The abbve- shall. not apply when an employee ;. resigns or cis discharged for just cause. __ Mainland is di_S1;:Jnguishable on the very diffeie~t language ,. - under cOh~ideraJ..j.onin that ca~e a.S compared to Para. 9 of ~ . the Memorandum o~ Settl~ment ~n th~~ Case: .; ~. 9.- 'SEVE'R!iNCE :1" j , All Collective-Agreements -shall provide the following 'severance P.a.Y prqv-isi.ons ,-except that where a qo~lective agreement contains _.' superior 'provisions, the 'sup~rior provisions shall 'remain -in full ,fQrce .;aqd -effect; sP.t-An employee with -five ( 5). yers .service - - on separation !ro~.~mpl.oyment shall be entitl~d to receive on separation, seve- rance pay of one ell week's pay' per year of 'servic;:~ ,up tq a mcpdmum of twenty-six (26) w~eks' pay. .,; ~ SP 2 S1l9!1 severance pay shall only be provided ~n qases of separation from employment due to: (a) death of the employee, ~ - (b ). indefinH.:e- layoff, in which case the employee must waive his ri9~t to re- call!rolJ\ layoff, iI:1 writing, aI?' a condition of receiving severance - pay. Indefinite laYoff,includ~s a period. of 1;.h.irtY-f.iv:e (35) c;::onsecu- tive_ weeks, ......'... - , (c) retirement. I 27 - - Tne ~tr~ctu~~ of Para. 9 above indicates that subpara. SP'f ~odif~es the preced~n~~ subpara. SP.! SP.! indicates that the th~esnold requireme~t for a severance payment is a minimum of 5 years' servic:e~ SP.2 states th~t the severance -.., payment will bel?ai~ oI)ly ~n the case 9f 3 ~pecific circum- s~a~fe~ of_ "s~p~;r~tl:-on fromc employment" . SP.2 does not indi- ) cate that the 3 stipulated circumstances are examples, among ." others, of "separation from employment "- and does not imply that the parties contLempla,ted any other "separations" from employment las entitl-ing an employee tQ severance pay. Ap- plying tne _~hle of qon~tru~tion, that where the' parties have specifi.ed the- circumstances under whi~h a benefit or term r will apply, they _lintendeq to exclude -all others ("inclusio unio est exel-usio alteri:us"), we conc.l;gde that the parties -intended to limit the circumstances-~nqer wh~ch SP.! seve- rance pa~ was ~ayable. We conclude that the bare reference to "retirement" in - Para. 9 of the Memorandum of Settlement rep~esents a latent, if not a.patent ambiguity. We presume that neither party presented extrinsic evidence because there was none, or be- cause it would have be~n of no assistance. We conclude that - our-function, is tq construe the parties' intention regarding ~ - "retirelJlent" ort-\he basis of_ the language of their collective - - agreement and Memorandum of Settlement, using the usual rules of constructioh as aids to interpretation. t The collective agreement contain_s no provisions as to severance or termination payments which might otherwise be modified by para. 9 of the Memorandum. We -conc:'l,ude ,on the ianguage of the MemoranduIn of Settlement and the collective agreement, that prior to the Memorandum of Se~tlement., the parties were unable to reach agreement on that subject and that by Para-. 9 they intended to confer the- benefit of a ) severance payment in the 3 specific circu~stances found in SP.2. T-he parties provided no def ini tion of "retirement" in their agreement or Memorandum. They do not apPear to have turned their attention to it at all. I .\' -- -- "' "~ 28 In the absence of a definitionl the "ordinary meaning" I Labour term and general of the term should be considered. dictionaries may be consulted to ascertain the ordinary mean- ing of the word "reti~~ment.'ii[ in g~neral usage as' well as in the context of labour relations. Canadian Labour Terms ( 6th red. ) , supra., 'at p. 66, upon which the employer relies in part, defines "retirement" as - ~ .I ~ follows: ~ Retire:ment:- "; -~ .J. .., , .--i... . "}. Permanent withdrawal from the labour force. Del.ayed retirement, is withdrawalaJter the " ,~ normal retirement 4ate;,. l!su~lloY with the con- '. sent or at the request of the employer~ Disabil,i tyretirement' is'wit'hdrawaJ,i' be~ore the n9~al r~tiremept ~ge because of physical incapacity. Early retirement is' withdrawal befor-e the normal retirement dat~__. :Ft may 'be helpful: to 'compare t'he above with tbE:!- defini- tion in Sack & Poskanzer, Labour Law Terms, .supra:, - retirement: termination of-employment on reaching a ,'" specified age; -the tet:ms of an ~mp;LoymeI)t contract or coll~ctive agreement may d~termine whether retirement is voluntary or compulsory, or whether v provis~on exists fQr early retiremept or continua- - tiol1 in employment after re_tirement age ; however , these arrangements are subJect to human rIghts w - legislation which in most provinces restricts the rigbt of an employer to iJn.pos~"c9mpulsory retire- ment until age 65'; and unde~ the Canada Labour Code until the "normal age of ret.i:tement "for ~p\ploye,es in ~imilar position~; .in all Can~~ian jurisdic- tions, human rights legislation makes an exception where .age is a bona fide occupational qualification ,'The firs.t definition defines retirement as ~. wi_thdrawal from the labour force and sets out thr.ee-, ci,rc~m~tan:ces which may result inthatoccurring,i:ncluding- ,disab~lity. In -each of those circumstances 'the definition refe:rs ~o "no;qnal re- tirement date'" or "'normal retirement age". The' -s~cond defi- nition~ initially refers to retirement as t~;rminaticm~ -of em- ~. J ployment upon' -reachipg a: specific -age.{ Thus, wqethe~_charac- terizing retirement as an active -or -passive ~occurrence, both l:abour term definitions refer .to ret-irement :iIJ. ref.e_rence to 'u '":' -,. -- -.. ~ \ t 29 < , j age, and whe~e ~theJ:: '-"causef: 9r "fact~;-s tfiggering" retire- ment are considered, they are considered. in reference to the cam~e of.. "normal fetireme.nt.", i i.e. at~~~nment of a certain age. "- r ;- .,,:\0.... ,. T~e te.rm "~~t:li:einefit-" -does_ nq.t appear in Sack Goldblatt Mitchell',s 'Words and Phrases: A Dictionary of Collective -Agreement Language ('Lanqa~t~r Hous~: Toron~o, 1993), a dic- "- - ...... t ,~ tionary which presents the definitions in Canadian arbitra- .,.. , tion cases of words and phrases commonly found in collective agreements. The parties presented us no cases which specifi- .. ' . i -\ ) cally dealt w~1:h~~l1e Serin ":tetir~me~:t:" il) the context of entitlement to seve~ance' pay except Lackawanna, supra, an -- -- American case.. - . - _ .J, .:. "- ..:j General- as- opposed to specialized dictionaries, such as 4ic~ionaries containing labou~ ~~w ~e!ms, provide the gene- ral, ordinary 'meaning of "retirement'" and also its meaning in particula~ non~e~ployment conte~ts. The Oxford Encyclopedic - ~nglish Dictionary (Cl~rendon Press: ~xford, 1991) defines "retire" as follows: \ < 1 .~- iptr., leave of:j:ice PI;: emp~oyment, esp~_ because of age (retire from the'arfuy; retire on a pension). -- -b tx-. cause a person' to retire from work. 2 intr. - withdraw; go away;- ret.r~at. 3 intr. ~eek:s-eclu- ( sion or shelter. 4 intr. go to bed. 5 fro withdraw (troops}. ,6- intr. :&' tr. Cricket ... 7 t-r. Econ. ... and- defines "retirement" -as _ k 1 a the act or '-an instance of- retiring. b the con- dition of having retired. 2 a seclusion or -privacy. b a seqlu4ed place. It may be us~ful to contrast the full ~ef.:!-niti:ons of "retire" and "retirement" in the Random Hou~e Unabridged r Dictionary (2nd ed.), s~pra: .l . -' - J ...... re-tire ... v.i. 1. to withdraw, or go ~way, or apart, to a place of privacy, shelter_or seclusion: he retired to his study 2. to go to bed: he retired at midnight. 3. to withdraw from. office, business or active life, usually because of age: to retire at the age of sixty. 4. tq fall back or retreat in an orderly fashion and according to ,~ 30 plan, as fro~ battle, an untenable position, dan- ger, etc 5. to wi1;.hdraw or ,rell1ove oneself" After announcing the guests, the butler retired. --v.t 6 .to withdraw fromci'rcula,tion by taking up and paying,_ as bOl1ds, bills, ete.; .. 7. to withdraw or lead back (troops ...) ....S. to remove from active service or the usual field of activity, as an ~r~wofficer or busin~ss ~xe9utiv~.J). to withdraw(ci machine, ship, etc. permanently from its normal service, usuallY forsc:r:;apping;: take out of us~). 10:, Spo~ts. t9 put qlit (a b9-tter, side, etc. ) . --n. Literary.~' 11. a -place of withdraw- ~ al; ... 12. retiremen~ p~ withdrawal, ~~ from wordly mat~?rs OF the company of others. I ' - , re-tire"'ment ... '. n. 1. the ap1;.of retiring or the , state ofb~ing retir~d~ 2.:temoval or withdrawal from service, office, or business. i. the' portion . ota- person's life during which. a peI:sonis _retir- ed. 4. a pension or other income on which a re- tired person lives: his retirement ~s barely enough to pay the rent. 5. withdraw.,al into privacy ..I or seclul;>ion-. 6 .priv~cy or ~eclus:ton. 7. a pri- . vate orsecuded place: S: Mil. orderly wlthd~awal of a military .force, -ac,cordingto' plan, wi;ttlout pressure from the en~my. ~.91!{ wi~hq+a~a.1. of securi- + ties from the market -by a corporation ...~ --adj. 10. I1otingot pertainingt9 re-t;iremept:retirement pay. The Oxford definitions indicate that in its transitive form, I "retire" meahs removal and 'in its int'ransitive form "retire" can mean withdrawal. ~The Random -Hquse d,efinitions of "re- - tirement" indicate, at defiIiiti,.~.:m 2, that retirement can be >employer-initiated( removal ),or emJ?loYe~~initiated (withdraw- al) These aspects of retirement' ~ '\ordinary meap.ing" shed little light on what the parties to th~s agreement had in :-mind by using, the term. "retirement'~ wit;l:1 IlO modification. It is well recognized that an employee 'may retire from employ- ment dlie to age because of a law requiring withdrawal from employment at a certain age, andvtew~the withdrawal or re~ tirement as welcome, voluntarily, ancf self-initiated whereas another person may feel s/he is being. removed under compul- sion of law or of the employer, inyblu~tarily, and contrary '- to hislher wishes. Thus; the view that the only retirement i /' ~ ,. 31\ ) .# 1 _ \r- contemplated by the parties is ani employer-initiated one does '. r I hot assist:' in resolving the conundrum J __ r'- ; ~ The above definitions indicate that general dictionaries . r rt 1"'/ 0.; define retirement as a generic t~rm meaning~wfthdrawal, in- i - t 4 .. f r J, -.j l ,'J <;:luding_from one'~ '<<:mplorment as _weli a;:; !rom O'ther matters. ....~... \., .!.. ~ t........ They ~ndicate that there ~re a range of ordinary meanings of _ 'I ....1 .I~;~ . "retire" and "retirement". However, the Random House defini- , - -f' ~ 'fr~" i !'t:. i. ~ r' tiori "to withdraw from otfice, business or active life, usu- ( .. .; - .. "'- ~ ,.;\~. . J { ally because o~ age" indicates that usually or ordinarily the -{ - ~~ - wit~grawal occurs because ot age. The Oxford definition in- ~ dicates its definition, in respect ot leaving employment, 1 -- ..---- . j arises "especially" because of age. . i..! _ _ _ ._... The draft~ng of para. 9 lacks prec~s~on. .We do not know . . - whether the parties i~cluded it ~n haste, or whether it is the product of lengthy and~considered negotiatIon. In view of the above dictiona~y defihitions;Cwe can conclude with certai~ty that bot~ pa~ti~ intended to include retirement due to attainment of'a certain age. In not stipulating age, :> a!loth~r ambiguity ma~' ar_ise--theage at which will a person be entitled to retire and receive a severance payment. Per- i'. _. j ., . haps the parties intended that emp~oyees be eligible for or required tQ retire, depending upon the individual's perspec- -- 1~ . _ . .... ;~ tive, at" whatever age of retirement was determiped by statute , .... ~t any given time in the future. . ~ 4 Given the physical nature of the work of an ambulance attendant, apd the stress associated with it, disabilities . r'" causing employees to perma~ently withdraw from the workforce ~ . '..... .....r '"<:: - w~ll occur fro~time to tim~. The frequency with which this has oCGu~red in the past and-is expected to _occur in the fu- ture, and the anticipated cost to the employer of such a , benefit mayor may not have been considered by the parties -- ~ during negotiations. Frequency and cost are matters for the parties or an interest arbitration, but the absence of any i evidence as to those factors somewhat limits the ability of a rlghts arbitration panel to determine the intention of the \ i parties. - I . ~L.- 32 Severance o~ termination benef~ts serve many p~!poses where the amount payable is tied to the number of ye~!s with which an employe~ has been working for an employer, it is r ;" ')0 b> ' reason~ble to view th~ benefit as an incentive plan to induce . . - f ..:_ ,_ the employe~ to remaln wlth the employer, and as an invest- f : ";L ment and compensation for whatev~r~aqrifice the employee has \ " made in remaini~g with the e~ployer~ As ~ result of the t . :: ,. ~,-r -:- amount being tied to the number qf years of employment, em- f 7" .... [-~ . ; ployees view it as an II earned benefit II' ~ The parties general- ly determine-thrqugh negotiation the circumst~nces under J...... ,..... .;I (: '~J-..... which the employ-~r will prov~de such a -benefit, ,if at all. , ~- In case of an indefinite perm~nent lay-off, the benefit '0." ..... can provide a financial support o~ cush~on-while -'an employee look~ for and hopefully finds another position. Where the . ,~.. ~ employee dies, it can _provide a financial support, or cushion to his/her beneficiarie~, to console an.d assist themqs they ~ , ... ~ ma~e ~he adjustment to life without him or her., On retire- men~ due to ag~, it can provide a financial support or cu- ~ ~~ ~ shio~ d~ring the period of a~justment following withdrawal from employment, when their income will likely be reduced. :-, When the employee retires due to disability, whether or not ~ ~ iil receipt of' di,sability or Workers" compensation- benefits, a - - " - severance payment can provIde a financial support or cushion ..- .., " ' to compensate for loss of self~esteem owing to their non- or limited contribution to the economy of their family, and can assist them'and their family in making the transition to a way of living wh~ch accomodates the disability. Thus, depen- . r . ding upon the specific and 90nsideredintentions of the pat- ties, where retirement or withdrawal ~ro~ employment is caused_~by disability, the payment of the benefit m~y not always be viewed as a windfall or double recove~y. That will ~ depend upon the specific language and intention of the parties. Tl:lere_is little doubt on the evidence before us that the grievor's ~ction constituted a resignation from his employ- I . ment motivated by the reasonable expectation that he would be ~ I , \ i ...i': ';;. J 33 \' -, unable to ~esume employment for City Ambulance or any other emplQy~r in the for~seeable future. ; There is no doubt that he did n9t e~pect or intenq to resume~emp16yment at any point ip the future. The 9orre9t rquestion is whether iirs~"actions also -fall within the meaping of "retj.reme~t ',' as intenc;ted~,. by the parties - ~ J in Para. 9 of the Memorandum. The terms brisigriation" and -. "retirement" (ire not mutually exclusive. Both result in the ~ . employee ceas.ipg t9 p~ovide service to the emplqyer. The absen9~ of words modifyin9, expanding or limiting the meaning of .retJrement is as . consistent with- ~theparties having chosen to limit its meaning to its ordinary ahd usual one, "us_ually b!3cause oJ age", as it is with their having , ......( -- . -chosen to include all meanings. L The union's position is that retirement includes re- tirement due to disability. The un~on"does not offer any other limitations, except that the cause of the withdrawal from employment be due to circumstances beyond the control of the employee. That is a highly subjective test, and one which is full of uncertainties. An employee who suffers a di~ability"may or may not choose to retire in the sense of formally withdrawing from employment and seeking, e.g., his - - removal from the Human Resources inventory. What then.. is his/her ~ntitlement, under this Memorandum, if his or her - doctor considers it unlikely that s/he will ever return to an "- employable state? If 'an empl?yee wins a substantial lottery or receives a substantial inheritance and feels that these are circumstances beyond his control, and withdraws from em- ployment, i~ the test of entitlement is whether the circum- ., stances of ,the retirement are beyond ~he employee's control, the issue of whethe~ this isa retirement within the contem- plation of the parties will be before an arbitration board again, The employer urges us to determine that "retirement" means retirement because of age. The age of retirement is not specified. Uncertainty remains. ) l ........ Ai I \\.=.; 34 However, in terms of business efficacy, we prefer the , empl<;>yer's interpretation It is a limiting arid exclusive i definition, rather than one which leaves uncertainty as to what other circumstances will entitle other employees. It permits the age of retirement to be determihed by the rele- vant statutes in force at any given time, -aild which may _ r change from time to time. It provides some certainty until ~ the parties negotiate the matter further. '-- r- '-- ,..: ' . tr We believe that the parties can do a better job than a rights arpitration papel by defin~ng, in nfagotiafions, under what circumstances they intend a severanCe or termination benefit to,be paid, and we urge \'-thein to db -so. ~ i . r For ~ll the foregoing reasons, the g-r ievance is dis,missed. .. I' . t Dated at Toronto this 27th day of October, 1995 .c ....t';, .:- " - - ~ ..:: g -- /k{~~t;P Michael Milich Employ~r N6ininee ~ - ~ - ..~ ; - ~< ~~,,- ~~ .." --. - . ~ -: , ".;. ,-, Edward Seymour" 1(. union Nominee - , I /'