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HomeMy WebLinkAbout1998-0912.Witherow.00-12-04 Decision o NTARI 0 EMPLOYES DE LA COL'RONNE CROWN EAIPLOYEES DE L 'ONTARIO -- GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 GSB #0912/98 OPSEU#98C376 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees U mon (Witherow) Gnevor - and - The Crown III Right of Ontano (Mimsm of Labour) Employer BEFORE Bram Herhch V Ice Chair FOR THE Alhson Kabayama-Hun GRIEVOR Gnevance Officer Ontano Pubhc ServIce Employees Umon FOR THE John SmIth EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING November 21,2000 2 AWARD The heanng before me m thIS matter proceeded on the basIs of the followmg agreed facts 1. Mr Joseph Witherow was hIred on Apn116, 1974 and has served as a ConstructIOn Health & Safety Officer With the Mimstry of Labour 2. Mr Bnan Lemlfe IS the Manager, Windsor DIstnct and supervIsor to the gnevor 3 On May 27, 1997 a dIScussIon took place between Mr Witherow and Mr LemIre regardmg a reqUIrement that Mr Witherow use a govemment vehIcle for the purposes of carrymg out hIS dutIes. 4. Mr Witherow responded to Mr Lemlfe S mstructIOn With a memorandum whIch outlmed the reasons for hIS request to be exempted from dnvmg a govemment vehIcle 5 On May 29, 1997 Mr LemIre Issued a memorandum to Mr Witherow to confirm the expected use of the govemment vehIcle effectIve June 16, 1997 6. Based on subsequent dIScussIon(s) between Mr Witherow and Mr LemIre, Mr Witherow understood that If he gave notIce of hIS mtent to retIre, he would be permItted to dnve hIS own vehIcle 7 Mr Witherow submItted a letter dated July 16, 1997 of hIS mtent to retIre effectIve January 30, 1998 Mr Witherow S actual last day at work would be November 14, 1997 due to the use of accumulated vacatIOn credIts 8. On October 30, 1997 Mr Witherow suffered a workplace mJury and receIved medIcal treatment by a WCB phYSICian. 9 Mr Witherow had obtamed approval from hIS treatmg phYSICIan to retum to work effectIve February 2, 1998 The medIcal certIficate speCIfied "Ideally modIfied work l.e sedentary work" 10 Mr Witherow rescmded hIS mtent to retIre by letter dated January 13, 1998 3 11 On January 28, 1998 Mr Witherow receIved a letter dated January 27, 1998 from Mr LemIre declmmg hIS request to have hIS resIgnatIOn notIce rescmded. Mr Witherow was adVIsed to ensure that all retIrement paper work was completed With DIane KnIght. 12. On February 2, 1998 Mr Witherow met With DIane KnIght to SIgn hIS penSIOn paperwork. Mr Witherow felt compelled to do so smce he was not receIvmg any payor WCB benefits at that tIme 13 In March 1998 Mr Witherow receIved a letter from WCB mformmg hIm that hIS claim had been approved for the penod October 30 to November 9, 1997, only 14 Mr Witherow receIved a pay cheque dated February 5, 1998 m the net amount of $491 28 15 Mr Witherow dId not receIve any further pay cheques subsequent to February 5, 1998 16 On Apnl 10, 1998, Mr Witherow sent a memorandum to Mr LemIre advIsmg that he Wished to have hIS pay supplemented by the vacatIOn credIts lost dunng hIS penod of absence due to the work related mJury Mr Witherow requested that those credIts be used to supplement hIS WCB pay and that he be paId the remammg 275 vacatIOn credIts m full. 17 On Apnl 27, 1998, a gnevance was filed by Mr Witherow essentially allegmg that the employer unreasonably demed hIS request to rescmd hIS letter of mtent to retIre, thereby denymg hIm contmued benefits, the use of hIS vacatIOn credIts, and the Improper deductIOn of such vacatIOn credIts from hIS last pay cheque Mr Witherow sought remstatement to hIS former pOSItIOn retroactIve to January 30, 1998 and reImbursement for all loss of salary, benefits and vacatIOn credIts plus mterest. 18. A Stage 2 meetmg was held on October 5, 1998 Mr Witherow and hIS unIon representatIve, Elame EllIs, argued that Mr Witherow had been dIsmIssed Without cause and SectIOn 19 of the PublIc ServIce Act was relIed upon. It was noted that Mr Witherow s pOSItIOn had not been filled at the tIme that he sought to rescmd hIS reSIgnatIOn. 19 The Stage 2 response was Issued on October 26, 1998, denymg Mr Witherow s gnevance and statmg that the Employer determmed that Mr Witherow retIred voluntanly and had not been dIsmIssed from hIS employment. 4 20 Mr Witherow S gnevance was scheduled for a mediatIOn process September 13-15, 1999 However, prelImmary dIScussIons revealed that no offer of settlement would be extended and the gnevance was not resolved. Pnor to and durmg the course of theIr legal argument (no oral eVIdence was called), the partIes supplemented and clanfied the above facts. FIrst of all and despIte the references m paragraph 6 of the above facts, It was acknowledged that the gnevor S deCISIon to tender hIS reSIgnatIOn had been entIrely voluntary SImIlarly, the events of February 2, 1998 (see paragraph 12 of the Facts) are pomted to m order to demonstrate that, even at that late date, the gnevor S contmumg mtentIOn and deSIre was to rescmd hIS reSIgnatIOn. It IS not, however, claimed that the gnevor dId not tender a legally bmdmg reSIgnatIOn-It IS acknowledged that he dId. The Issue IS whether he ought to have been permItted to rescmd that reSIgnatIOn. Fmally, It was not dIsputed that the deCISIon to deny the gnevor S request to rescmd hIS reSIgnatIOn (see paragraph 11 of the Facts) was one made With the proper delegated authonty of the Deputy Mimster The deCISIon of thIS Board m Rao (1542/85, 1543/85, 1544/85- Vice-Chalfperson FIsher) conSIdered and rejected a SImIlar claim. In that case the gnevor sought to rescmd the reSIgnatIOn she had tendered less than a week earlIer The deCISIon tums on the proVIsIon of sectIOn 19 of the Public Service Act It currently reads as follows (changes to the verSIOn conSIdered m the Rao case are not matenal for our purposes) 19 A person may reSIgn from the publIc servIce by gIvmg hIS or her deputy mmIster two weeks notIce m wrItmg of the mtentIOn to reSIgn, but he or she may, by an appropnate notIce m wntmg and With the approval of hIS or her deputy 1ll1mster, Withdraw the notIce at any tIme before ItS effectIve date If no person has been appomted or selected for appomtment to the pOSItIOn that Will become vacant by reason of the reSIgnatIOn. [emphasIs added] 5 In the Rao case, as m the present one, all of the reqUIrements of sectIOn 19 appear to have been met except for the grantmg of approval by the Deputy MinIster The employer m the Rao case asserted that, absent any relevant prOVIsIon of the collectIve agreement or the Crown Employees Collective Bargaining Act, the Gnevance Settlement Board had no authonty to reVIew the deCISIon of the Deputy Mimster to Withhold approval of the reSCISSIon of the reSIgnatIOn. The unIon argued (agam, m Rao) that sectIOn 19 effectIvely makes all reSIgnatIOns condItIOnal on not bemg revoked pnor to the effectIve date It relIed as well on ItS assertIOn that an earlIer deCISIon de almg With the matter had not found that the gnevor had submItted a legally bmdmg reSIgnatIOn to argue that the case therefore amounted to a dIsmIssal whIch could be the subject of a gnevance In dIsmIssmg the unIOn S claim the Board concluded that there IS, m effect, lIttle dIfference between the sectIOn 19 procedure and that whIch would obtam m the pnvate (unIOnIzed or non-unIOnIzed) sector The deCISIon as to whether or not to accept a Withdrawal of a reSIgnatIOn was described as "stnctly a Management functIOn, not open to arbItral reVIew unless the CollectIve Agreement clearly prOVIdes for It" WhIle there are some dIfferences between thIS case and the facts conSIdered m Rao, none of them pomts to a dIfferent result. The managements nghts and the Just cause prOVISIOns are now found m the collectIve agreement-at the tIme of the Rao deCISIon they were found m the Crown Employees Collective Bargaining Act. However, there IS nothmg m those prOVISIons, as they eXIsted eIther then or currently whIch applIes to the facts at hand. The unIon acknowledges that the gnevor voluntanly submItted a legally bmdmg reSIgnatIOn - thus the somewhat artIfiCial construct of charactenzatIOn as a dIsmIssal IS not even aVailable m thIS case (an approach whIch, m any event, faIled to Impress the Board m the Rao case) Finally, the unIon concedes that that there IS no proVISIon m the collectIve agreement whIch It can claim has been VIolated m thIS case 6 WhIle the gnevor S dIsappomtment at the employer S refusal to grant a request whIch It mIght have been m a posItIOn to accommodate IS not dIfficult to comprehend, m the absence of any claimed VIOlatIOn of the collectIve agreement or any other source of mandated JunsdIctIOn, thIS Board IS unable, to us e the words of the Rao decIsIon, to "SImply correct perceIved mJustIces" We were provIded With no legal baSIS to depart from the Board S analYSIS m Rao and therefore declIne to do so The gnevance IS dIsmIssed. Dated at Toronto, thIS 4th day of December, 2000 - ~ . I - ~--~_. - ~~ -~. Bram HerlIch, Vice-Chair