HomeMy WebLinkAbout1996-0481PLAZA97_12_29
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ONTARIO EMPLOYfS DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
, 1111 GRIEVANCE COMMISSION DE
..
SElTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G IZ8 TELEPHONEITELEPHONE (418) 328-1388
180, RUE DUNDAS OUEST, BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILEITELECOPIE (418) 328-1398
GSB # 0481/96
OPSEU # 96D561
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (plaza)
Grievor
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The Crown 10 RIght of Ontano
(Management Board Secretariat)
Employer
BEFORE B Fisher Vice-Chair
FOR THE N Luczay
UNION Gnevance Officer
Ontano Pubhc Service Employees Union
FOR THE S Kapur
EMPLOYER Counsel
Legal ServIces Branch
Management Board Secretanat
HEARING October 29, 1997
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"
In this case the Grievor claims that she did not receive either her pay in
lieu of notice under Article 24.2.1 or her Separation Allowance under Article
24 3.1 of the Collective Agreement.
Oral reasons were given at close of the case, however the parties wanted
to also have written reasons.
The relevant facts are quite straightforward and can be listed as follows.
1 In September 1995 the Grievor became entitled to retire from
employment with an enhanced pension under the Factor 80 Program.
She made an inquiry of the human resources department to inquire
when her window of opportunity would close on this option.
2. On October 4,1995 the Grievor was given Notice of Surplus. This
notice contained the usual six months' working notice clause
3 The Grievor's window of opportunity to elect the Factor 80 Program
closed on October 31 ,1995 However, if she chose to retire under the
Factor 80 Program, she could still defer her actual departure date until
the end of her six-month surplus notice
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4 In order to qualify for the Factor 80 Program, the employee must waive
all their surplus rights, which includes not only the right to recall, tuition
assistance but also the separation allowance under Article 24 3 1
This is explained clearly both in the handout that is given to employees
explaining the Factor 80 Program as well as Article 17 1 (3) (b) of the
Ontario Public Service Employees Union Pension Plan, which states
as follows
"(the Factor 80 Window) does not apply to a member who
has not waived all entitlement to benefits, payments,
opportunities for assignments to other positions or other
considerations resulting from the notice of release from
employment. "
5 On October 26,1995, the Grievor submitted a written resignation letter which
stated as follows
"This is to inform you of my intention to resign my position effective
October 31, 1995, under article 24 as a surplus employee and under
Article 17.2(1) (a) of the OPSEU Plan, having satisfied Factor 80
requirements.
By exiting on this date, my entitlements include , according to the
above articles 6 months pay in lieu of notice and a unreduced
pension I have, therefore, waived my redeployment rights and
other tuition options.
Please have all necessary papers for my signature and payout
entitlements ready on or before my resignation date "
6 On October 30, 1995, the Grievor met with a representative from the Human
Resources Branch who explained to her that she would not receive any
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surplus entitlements, if she took the Factor 80 retirement. This was also
confirmed to her in an e-mail of October 31 ,1995
7 The Grievor resigned on October 31,1995, thereby choosing not to work out
the balance of her six months' notice. She started receiving and has
continued to receive her Factor 80 pension
The legal issue is whether or not the Grievor's letter of resignation
constitutes a waiver of her entitlement to pay in lieu of notice and/or
severance allowance
First of all, with respect to the issue of the pay in lieu of notice, it is
important to set out the actual language of Article 24.2 1
"An employee shall receive six (6) months' notice of lay-off or pay in lieu
thereof"
The Grievor did receive six months' notice of layoff in her surplus letter of
October 4, 1995 She had no right to unilaterally convert all or part of the
working notice into pay in lieu of notice It is the employer who chooses
whether or not the employee is requIred to work out the notice period
Therefore, it is not necessary to determine whether or not the resignation
latter waived any right to pay in lieu of notice, as the Grievor did not have this
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right in the first place She did have the right to work out the balance of the
notice period, and she chose not to do so
With respect to the issue of the Severance Allowance, the resignation
letter makes it quite clear that she is waiving all of her Article 24 rights other
than the two that she expressly reserved, which were the right to an
unreduced pension (which she received) and the six months' pay in lieu of
notice (which she had no right to in the first place) She did not reserve any
rights to the 12 weeks' Severance Allowance, therefore the resignation letter
was a legally binding waiver of her Article 24 3 1 rights to a Severance
Allowance
The grievance is therefore dismissed
Dated at Toronto this 29TH day of December 1997
Fisher, Vice Chair