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HomeMy WebLinkAbout1999-1723.Union.00-11-09 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARW .. GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB # 1 723/99 1006/00 OPSEU #00U002, 00U137 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (OPSEU) Grievor - and - The Crown m RIght of Ontano (Mimsm of Health and Long-Term Care) Employer BEFORE RIchard Brown Vice Chair FOR THE RIchard Blair Counsel GRIEVOR Ryder, Wnght, BlaIr & Doyle Barnsters and SolIcItors FOR THE John Srmth, Counsel EMPLOYER Legal ServIces Branch Management Board SecretarIat HEARING October 20 2000 The umon has filed two polIcy gnevances, one relatmg to the transfer of Brockville PsychIatnc HOSpItal and the other relatmg to the transfer of Hamilton PsychIatnc HOSpItal Each of these mstItutIOns IS about to be transferred to a local hospItal m the broader publIc sector Pursuant to a transfer agreement negotiated wIth the crown, each receIVmg facilIty has made a offer of employment to all affected employees on terms and condItIOns whIch mclude a salaIY of at least 85% of theIr former earnmgs and recogmtIOn of servIce and semonty acqUIred m the Ontano publIc servIce The mstant dIspute concerns entItlement to severance pay for employees who at the date of transfer will have completed more than one year and less than five years of servIce WIth the provmcIal government. The partIes agree employees wIth less than one year of servIce are not entItled to severance pay under the collectIve agreement. Employees wIth more than five years of servIce will receIve severance pay As to employees wIth between one and five years of servIce, the MImstry of Health and Long-Term Care claims they are not entItled to severance pay The umon dIsagrees I EntItlement to severance pay IS governed by artIcle 534 relatmg to full-tIme employees and by artIcle 78 1 relatmg to part-tIme employees As the relevant language m these two provIsIOns IS IdentIcal, only the applIcable portIOn of the former artIcle need be reproduced. 53 4 An employee, (a) who has completed a mmImum of one (1) year of contmuous servIce and who ceases to be an employee because of, 2 (3) release from employment under sectIOn 22(4) of the P S.A., or (4) resIgnatIOn dunng the surplus notIce penod, or (b) who has completed five (5) years of contmuous servIce and who ceases to be an employee for any reason other than, ( 1 ) dIsmIssal for cause under sectIOn 22 of the P S A., or (2) abandonment of posItIOn under sectIOn 20 of the P S.A., IS entItled to severance pay Applymg paragraph (a) to the facts at hand, counsel for the umon contends an employee wIth between one and five years of servIce IS entItled to severance pay under sub-paragraph (4) as havmg resIgned dunng the surplus notIce penod. In the alternatIve, counsel submIts an entItlement to severance pay anses under sub-paragraph (3) because the employee has been released under sectIOn 22(4) of the Puhhc Servlce Act II I begm wIth the umon's alternatIve argument concermng artIcle 53 4(a)(3) whIch creates an entItlement to severance pay when an employee has been released under sectIOn 22(4) of the Puhhc Servlce Act That sectIOn states A deputy mImster may release from employment m accordance wIth the regulatIOns any publIc servant where he or she consIders It necessary by reason of shortage of work or funds or the abolItIOn of a posItIOn or other matenal change m the organIZatIOn. 3 Counsel for the umon contends an employee has been so released when he or she ceases to be a publIc servant because of the transfer of a government facilIty to a new employer The same argument was made by the umon and rejected by tills board m analogous cIrcumstances m OPSEU and MlnzStry of Consumer and Commerclal RelatlOns, File 201/97, dated May 30, 1997 (FIsher) and OPSEU and Mlnzstry of Fznance, File 2105/96, dated March 23, 1999 (LeIghton) In MlnzStry of Consumer and Commerclal RelatlOns, the employees affected by the transfer had accepted employment wIth the receIVmg employer (page 4) The decIsIOn that they were not entItled to severance pay was based upon the last sentence of sectIOn l(a) of AppendIx 9 to the collectIve agreement WhIch states When an employee has been transferred to a new employer he or she will be deemed to have reslgned and no other provIsIOns of the collectIve agreement will apply except ArtIcle 53 or 78 (TermmatIOn Pay) The umon argued a transferred employee "IS deemed to have resIgned for all purposes except for the purposes of artIcles 53 and 78" (page 7) Mr FIsher rejected thIS argument and concluded the employees concerned were not entItled to severance pay "as they are deemed to have resIgned, and therefore have not been released from employment under sectIOn 22(4) of the Puh!zc Servlce Act" (page 9) In MlnzStry of Fznance, the umon agam claimed employees transferred to a new employer were entItled to severance pay because they had been released from employment under sectIOn 22(4) of the Puh!zc Servlce Act Counsel suggested a deemed resIgnatIOn under AppendIx 9 was not 4 voluntary and, therefore, should not bar the conclusIOn that an employee had been released. Ms LeIghton rejected thIS argument. Defernng to Mr FIsher's earlIer decIsIOn, she wrote The argument that transferees to pnvate employers pursuant to the provIsIOns m AppendIx 9 have been released under sectIOn 22(4) of the PublIc ServIce Act was addressed and rejected m [MlnzStry of Consumer and Commerclal RelatlOns] There was nothmg m the umon's submIssIOn to persuade me that It was patently unreasonable page 16) Both of these cases were decIded before AppendIx 18 was added to the collectIVe agreement. SectIOn 6 4 of AppendIx 18 reIterates the pomt made m the last sentence of sectIOn l(a) of AppendIx 9 an employee who transfers to the receIVmg employer IS deemed to have resIgned. SectIOn 6 4 states Employees who accept a Job offer m accordance wIth ArtIcle 6 1 1 wIth a receIvmg employer will be deemed to have reslgned effectIve the date they commence employment wIth the new employer, and no other provIsIOns of the CollectIve Agreement will apply except for ArtIcle 53 or 78 (TermmatIOn Pay) (emphasIs added) SectIOn 65 of AppendIx 18 makes explIcIt a pomt WhIch arguably was ImplIcIt m AppendIx 9 an employee IS deemed to have resIgned If he or she declmes what mIght be described as a "good" offer of employment. SectIOn 6 5 states 65 If an employee refuses a Job offer WhICh provIdes a salary of at least 85% of the respectIve employee's weekly salary at the tIme of the transfer and recogmzes the servIce and semonty m the OntarIO PublIc ServIce (OPS) of each employee for the purpose of qualIficatIOn for vacatIOn, benefits (except pensIOn), layoff, Job competItIOn, severance and termmatIOn payments to the extent that they are provIded m the proponent's workplace, the employee shall be deemed to have resIgned effectIve the date of the transfer of theIr Job and no other 5 provIsIOn of the collectIve agreement will apply except for ArtIcle 53 or 78 (TermmatIOn Pay) Read together, sectIOns 6 4 and 6 5 mdIcate an employee who receIves a "good" Job offer IS deemed to have resIgned, regardless of whether It IS accepted. In the mstant case, the employees concerned receIved "good" Job offers As they are deemed to have resIgned by AppendIx 18, the questIOn whether they have been released under sectIOn 22(4) of the Puh!zc Servlce Act IS mdIstmgUIshable from the questIOn addressed by Mr FIsher m Mlnzstry of Consumer and Commerclal RelatlOns Like Ms LeIghton m Mlnzstry of Fznance, I conclude Mr FIsher's mItIal decIsIOn on thIS pomt must be followed because It IS not patently unreasonable Accordmgly, employees are not entItled to severance pay under artIcle 53 4(a)(3) In neIther Mlnzstry of Consumer and Commerclal RelatlOns nor Mlnzstry of Fznance dId the umon contend the employees concerned were entItled to severance pay under artIcle 53 4(a)(4) as havmg resIgned dunng the surplus notIce penod. III The umon's claim under artIcle 53 4(a)(4) remams to be consIdered. The board has not prevIOusly consIdered the applIcatIOn of tills artIcle to employees who leave the publIc servIce m the context of a transfer governed by AppendIx 9 and AppendIx 18 ArtIcle 53 4 predates AppendIx 9 and AppendIx 18 Before these appendIces were added to the collectIVe agreement, an employee wIth more than one year of servIce would have been entItled to severance pay under 6 artIcle 53 4 If she left the publIc servIce because the facilIty where she worked was bemg transferred from the crown to another employer An employee wIth more than five years of servIce would have receIved severance pay under artIcle 53 4(b) as havmg ceased to be employed other than by reason of dIsmIssal for cause or abandonment. An employee wIth between one and five years of servIce, who dId not resIgn after bemg declared surplus, would have been entItlement to severance pay under 53 4(a)(3) as havmg been released from employment under sectIOn 22(4) of the Pub!zc Servlce Act An employee who resIgned dunng the "surplus notIce penod" would have been entItled to severance pay under artIcle 53 4(a)(4) Tills notIce penod IS described m artIcle 20 2 1 and 20 2 2 2021 An employee IdentIfied as surplus shall receIve SlX (6) months notlce of lay-off or, wIth mutual consent, an employee may resIgn and receIve eqUIvalent pay m lIeu of notIce 202.2 The notIce penod will begzn when the employee recelves ofJiclal wrztten notlce CopIes of such notIce shall be provIded to the Management Board Secretariat and to the Umon. (emphasIs added) An employee who receIved notIce of layoff and resIgned dunng the notIce penod would have been entItled to severance pay All of thIS IS common ground between the partIes The crux of the dIspute IS whether AppendIx 9 and AppendIx 18 have altered entItlement to severance pay As there IS no matenal dIfference m the relevant provIsIOns of these two appendIces, I will restnct my analysIs to the Impact of the language of AppendIx 18 on entItlement to severance pay SectIOn 6 of AppendIx 18 dIvIdes employees mto three categones, (1) those who accept a Job offer from the receIvmg employer; (2) those who declme a "good" Job offer; and (3) those who reJect a "poor" Job offer 7 Under sectIOn 66, employees who declme "poor" Job offers mamtam theIr entItlements under the collectIve agreement mcludmg artIcle 20 66 Where the salary of the Job offered by the receIvmg employer IS less than eIghty-five percent (85%) of the employee's current weekly salary, or If the employee's servIce or semonty are not carrIed over to the receIVmg employer, the employee may declme the offer In such a case, the employee may exerCIse the nghts prescribed by ArtIcle 20 (Employment StabilIty) and/or paragraphs 2 to 5 of AppendIx 9 The employee must elect whether or not to accept employment wIth the receIVmg employer wItmn three (3) days ofreceIVmg an offer In default of electIOn, the employee shall be deemed to have accepted the offer SectIOn 6 6 preserves artIcle 20 nghts for employees who reJect a "poor" Job offer, but such nghts are not preserved by sectIOn 6 5 concernmg employees who declme a "good" Job offer Nor are they preserved by sectIOn 6 4 concernmg employees who transfer from the crown to the receIvmg employer Employees to whom these latter two sectIOns apply are deemed to have resIgned and theIr contractual nghts are expressly lImIted to those found m artIcle 53 TheIr entItlements under artIcle 20 are abrogated. In short, they forfeIt theIr artIcle 20 nghts but mamtam theIr nghts under artIcle 53 For employees who accept aJob wIth the receIvmg employer or who declme a "good" Job offer, the Impact of AppendIx 18 on nghts under artIcles 20 and 53 IS clear-cut m most respects These employees lose entItlements under artIcle 20, mcludmg those relatmg to notIce of layoff or pay m lIeu, dIsplacement and re-deployment. Employees wIth more than five years of servIce retam theIr entItlement to severance pay under artIcle 53 4(b) About thIS there IS no contest. The dIspute IS lImIted to the applIcatIOn of artIcle 53 4( a)( 4) concernmg severance pay for employees wIth between one and five years of servIce 8 Counsel for the umon contends these employees are surplus because theIr servIces will not be reqUIred by the provmcIal government after the facilItIes m wmch they work have been transferred. Accordmg to thIS lme of argument, theIr surplus notIce penod began when they got letters saymg they will be deemed to have resIgned on the transfer date because they had receIved "good" Job offers TheIr deemed resIgnatIOn, effectIve the date of transfer, IS Said by counsel to occur dunng the surplus notIce penod. Counsel for the employer contends that employees who have receIved a "good" Job offer are not surplus Counsel notes the mmIstry reqUIres the servIces of these employees until the date of transfer I was remmded the word "surplus" does not appear m sectIOns 64 and 6 5 of AppendIx 18 WhICh apply to these employees As they are not surplus, counsel suggests theIr deemed resIgnatIOn upon transfer will not occur dunng the "surplus notIce penod" wItmn the meanIng of artIcle 53 4(a)(4) In reply, counsel for the umon notes that sectIOn 6 2 1 of AppendIx 18 applIes the label "surplus" to employees wIthout regard to whether they have receIved a "good" offer ThIS sectIOn states In the event that a receIvmg employer does not fully agree to the request m artIcle 6 1 1, mcludmg the matter of a probatIOnary penod, the employer may offer the receIVmg employer a financIal mcentIVe up to the amount that would have been payable as enhanced severance pay (calculated as provIded m paragraph 4 of AppendIx 9) to each employee affected by the transfer that the employer determmes will be declared surplus, m order to secure or Improve a Job offer to the employee eqUIvalent to a Job offer as described m ArtIcle 6 1 1 above or to ensure where Job offers are receIved from the receIvmg Employer for less than the full complement of employees IdentIfied by the Employer, that the receIvmg Employer offer employees Jobs on the basIs of semonty The partIes agree m no case will the employer be 9 reqUIred to pay a financIal mcentIVe m excess of the maxImum of enhanced severance for the affected employees SectIOn 6 1 1 reqUIres the mImstry to propose that the receIvmg employer make Job offers wIth no loss of salary and wIth recogmtIOn of servIce and semonty When the new employer does not fully agree wIth thIS proposal, sectIOn 6 1 2 contemplates the mmIstry offenng a financIal mcentIVe up to the amount of enhanced severance pay for the employees who "will be declared surplus" If the receIVmg employer ImtIally suggests offers that mclude recogmtIOn of servIce and semonty and a salary of at least 85% but less than 100% of prevIOus compensatIOn, they would be "good" offers Nonetheless, sectIOn 6 1 2 would apply and the employees would be treated as "surplus" for the purpose of calculatmg the financial mcentIve In thIS sense, sectIOn 6 1 2 charactenzes as surplus an employee wIth a "good" offer Do sectIOns 6 4 and 6 5 of AppendIx 18 defeat a claim to severance pay under artIcle 53 4(a)(4)? The answer to thIS questIOn IS not ObVIOUS EntItlement to severance pay under tms artIcle depends upon whether an employee resIgns dunng the "surplus notIce penod" The contractual nght to a surplus notIce penod IS created by artIcle 20 2 SectIOns 6 4 and 6 5 remove artIcle 20 nghts from employees wIth 'good" Job offers As these sectIOns dIsentItle employees to notIce of layoff under artIcle 20 2, one mIght conclude they are not surplus and have no surplus notIce penod. If so, theIr deemed resIgnatIOn could not occur dunng such penod. ThIS reasomng would mdIcate employees wIth between one and five years of servIce are not entItled to severance pay under artIcle 53 4( a)( 4) ThIS IS the essence of the employer's argument. 10 On the other hand, the entItlement of employees to severance pay under artIcle 53 IS explIcItly preserved by sectIOns 64 and 6 5, wIthout any dIstmctIOn bemg drawn between employees wIth more than five years of servIce and those wIth less Tms express preservatIOn mIght lead one to conclude that the entItlement of employees to severance pay under artIcle 53 4 IS not affected by these two sectIOns of AppendIx 18, not only for employees wIth more than five years of servIce but also for those wIth less Moreover, employees who receIve "good" offers are nonetheless surplus m the sense that they are superfluous to the needs of the publIc servIce after the date of transfer, as acknowledged by the use of the word "surplus" m sectIOn 6 2 1 Because they receIve notIce of theIr redundant status m the publIc servIce before the transfer occurs, theIr deemed resIgnatIOn on the date of transfer mIght be said to occur dunng theIr "surplus notIce penod" wIthm the meamng of artIcle 53 4(a)(4) ThIS IS the essence of the unIOn's argument. The foregomg analysIs of the language of sectIOns 6 4 and 6 5 of AppendIx 18 leads me to conclude It IS patently ambIguous as to whether employees wIth between one and five years of servIce are entItled to severance pay In other words, when the partIes agreed m AppendIx 18 to negate artIcle 20 nghts and to reaffirm artIcle 53 nghts, they failed to clearly mdIcate theIr mtentIOn regardmg entItlement under artIcle 53 4(a)(4) WhICh mIght be seen to depend upon the eXIstence of artIcle 20 surplus nghts Perhaps the negotiators dId not turn theIr mmds to thIS precIse Issue What beanng does thIS ambIgUIty have upon the proper mterpretatIOn of the collectIVe agreement as a whole? As noted above, artIcle 53 4 was part of the collectIVe agreement before AppendIx 9 and AppendIx 18 were added to It. Before these appendIces were negotiated, an employee wIth between 11 one and five years of servIce would have receIved severance pay under artIcle 53 4( a)( 4) If she had resIgned from the publIc servIce after receIvmg OffiCIal notIce that the facilIty where she worked was about be transferred from the crown to another employer The nght to severance pay m these CIrcumstances was clearly expressed m thIS artIcle I conclude thIS entItlement contmues to eXIst today because It was not clearly negated when the partIes fashIOned AppendIx 9 and AppendIx 18 Employees at the two psychIatnc hOSpItal, wIth one to five years of servIce, are entItled to severance pay under artIcles 53 4(a)(4) and 78 l(a)(4) Dated at Toronto, thIS 9th day of November, 2000 ~-~~ ."..... ..' .'.. -.l:-~ RIchard Brown, VIce-Chair 12