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HomeMy WebLinkAbout1998-0260.Clarke.03-03-11 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0260/98 1541/99 1542/99 UNION# 98B222 99E325 99E326 99E327 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Clarke) Grievor - and - The Crown III RIght of Ontano (Mimstry of Natural Resources) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Mr Ed Holmes Ryder Wnght Blair & Doyle Barnsters and SOlICItorS FOR THE EMPLOYER Mr Len HatzIs Counsel Management Board Secretanat HEARING February 11 2003 2 DECISION Lmda Clarke was demed Long Tenn Income ProtectIOn (L TIP) benefits for the penod between November 1, 1998 and Apnl1, 2000 She wIshes to pursue a "complamt" before the Jomt Insurance Benefits RevIew CommIttee (JIBRC) under artIcle 22 9.2 of the collectIve agreement The employer contends a memorandum of settlement tennmatmg the gnevor's employment bars her claim for benefits I The memorandum of settlement was drafted by employer counsel and executed at a medIatIOn-arbItratIOn sessIOn, held on November 21,2001, to resolve four gnevances by Ms Clarke The gnevances related to alleged dIscnmmatIOn and unjust dIscIphne mcludmg dIsmIssal The gnevor had an outstandmg L TIP complamt at the tnne, but It was not mentIOned m dIscussIOn between the partIes on November 21 The preamble to the settlement states In the matter of all outstandmg gnevances lodged by the gnevor and the umon dunng the gnevor's employment wIth the employer, the partIes herem agree to the followmg tenns as full and final settlement of all outstandmg gnevances wIthout precedent and prejUdICe as follows The first four paragraphs of the memorandum address the gnevor's status as an employee 1 The employer agrees to rescmd the dIsmIssal letter dated November 8, 1999 2 The partIes agree that the gnevor has been placed on a leave of absence wIthout pay for the tIme penod of October 14/98 to November 21,2000 3 The employer agrees to pay the employer and employee portIOns of the gnevor's penSIOn contributIOns for the above mentIOned leave 4 The gnevor acknowledges that she wIll be declared surplus effectIve November 21,2000 3 The remamder of paragraph 4 and paragraphs 5 through 10 provIde for the gnevor to receIve vanous sorts of compensatIOn approxImately one years' pay, an addItIonal $24,500 for lost mcome, and another $24,500 for relocatIOn expenses, retrammg expenses and general damages The memorandum of settlement contams two release clauses 12 WIthout InnItmg paragraph 13, the partIes agree that as consIderatIOn for the payments set out m thIS memorandum of settlement, the gnevor shall have no addItIonal claims for payment of salary, benefits, severance pay, tennmatIOn pay, or payments of any kmd ansmg from her employment wIth the employer 13 In further consIderatIOn of the payments m thIS memorandum of settlement, the gnevor agrees that these payments satIsfy all claims related to her employment and hereby releases and forever dIscharges the Crown m nght of Ontano, and the employer, ItS servants, agents and dIrectors of and from all actIOns, causes of actIOn, claims and demands of every nature and kmd ansmg out of or m any way related to her employment, or release thereof, mcludmg but not hmIted to all claims under the OntarlO Human Rlghts Code and the Employment Standard~ Act II Umon counsel contended the settlement was structured so as to preserve the gnevor's L TIP complamt In tlus regard, counsel noted paragraph 1 remstates her to employment and paragraph 2 places her on unpaid leave for a penod commencmg before, and endmg after, the mterval for whIch benefits are sought Relymg upon the preamble's reference to gnevances, the reference to two statutes m paragraph 13, and the dIstmctIOn drawn m the collectIve agreement between marbItrable L TIP complamts and arbItrable gnevances, counsel submIts the release clauses bar gnevances and statutory claims but not the L TIP complamt As the memorandum of settlement was drafted by the employer, umon counsel argued any ambIgUIty should be resolved m favour of the gnevor Notmg her L TIP complamt predates the memorandum of settlement, counsel 4 suggested the words "no addItIonal claims" m paragraph 12 should be read to mean "no new claims " Employer counsel rehes upon paragraph 12 saymg the gnevor "shall have no addItIonal claims for benefits" I was remmded L TIP IS governed by artIcle 42 falhng wItllln Part B of collectIve agreement under the general headmg of "Employee Benefits for Full- Tnne CIvIl Servants" Counsel argued the word "clanns" m paragraphs 12 and 13 IS broad enough to encompass both "complamts" and "gnevances" under the collectIve agreement As to the umon's argument that unpaid leave was granted to preserve the gnevor's LTIP complamt, employer counsel contended an employee cannot be entItled to L TIP benefits dunng a penod of unpaid leave, when an employee IS not expected to work, because such benefits are meant to replace wages lost when dIsabIhty prevents an employee from workmg as expected. Counsel also noted the reference to two statutes m paragraph 12 IS preceded by the words "mcludmg but not hmIted to " III The release clauses m the memorandum of settlement leave no doubt that the gnevor was WaIvmg much more than the claims asserted m her outstandmg gnevances Paragraph 12 states "as consIderatIOn for the payments set out m tlllS memorandum of settlement the gnevor shall have no addItIonal claims for benefits or payments of any kmd ansmg from her employment wIth the employer" The most reasonable mterpretatIOn of "addItIonal claims" IS claims for benefits or payments m addItIon to the "payments set out" The word "claim" IS sufficIently broad to mclude both complamts and gnevances, just as the word "benefits" IS sufficIently broad to mclude L TIP benefits On a hteral readmg, paragraph 12 bars the L TIP comphant from proceedmg to JIBRC In paragraph 13, the gnevor releases the employer from "all claims of every nature and kmd m any way related to her employment" Here too a hteral 5 constructIOn mdIcates the L TIP complamt IS foreclosed. The closmg reference m thIS paragraph to two statutes does not assIst the umon, because the precedmg words "mcludmg but not hmIted to" clearly mdIcate tlllS reference was not mtended to abndge the scope of the release The general structure of the memorandum of settlement does not support a dIfferent mterpretatIOn of paragraphs 12 and 13 By remstatmg the gnevor and placmg her on an unpaid leave of absence, the partIes provIded at most an ambIguous mdIcatIOn of theIr mtentIOns concernmg her L TIP complamt In contrast, paragraphs 12 and 13 contam a very clear mdIcatIOn that tlllS complamt IS barred. I conclude the settlement precludes the gnevor from pursumg her claim for L TIP benefits before JIBRC Dated at Toronto the 11th day of March 2003 ~ /....~ RIchard Brown VIce-Chair