HomeMy WebLinkAbout2000-1250.Union Grievance et al.03-04-29 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#1250/00' 1570/00' 1606/00' 1608/00' 1609/00' 1613/00' 1649/00' 1650/00' 1651/00' 1652/00' 1653/00' 1654/00'
1655/00' 1656/00' 1657/00' 1658/00' 1659/00' 1660/00' 1661/00' 1662/00' 1663/00' 1664/00' 1665/00' 1666/00' 1688/00'
1689/00' 1699/00' 1702/00' 1734/00' 1735/00' 1736/00' 1737/00' 1738/00' 1740/00' 1741/00' 1744/00' 1745/00' 1746/00'
1747/00' 1782/00' 1794/00' 1804/00' 1813/00' 1814/00' 1822/00' 1912/01
UNION# SEE APPENDIX "A"
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Umon Gnevance et al ) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of Health and Long-Term Care) Employer
BEFORE RIchard Brown Vice-Chair
FOR THE UNION Ed Holmes
Ryder Wnght Blair & Doyle
Bamsters and SOlICItorS
FOR THE EMPLOYER John SmIth
Semor Counsel
Management Board Secretanat
HEARING December 18 2002 & Apnl 14 2003
2
DECISION
The gnevances hsted m AppendIx "A" anse out of the transfer of psychIatnc
mstItutIOns from the MmIstry of Health to hospItals m the broader pubhc sector The
umon contends fonner crown employees, who worked for the Mimstry m these
facIlItIes, were entItled to termmatIOn pay and severance pay under the Employment
Standard~,' Act The employer dIsagrees Rather than leadmg eVIdence beanng upon thIS
Issue, counsel sketched the factual backdrop m theIr openmg statements
I
The umon claims all employees were entItled to statutory severance pay m the amount
of one weeks' pay for each year of servIce to a maXImum of 26 weeks Some
employees got severance pay and some dId not ClassIfied pubhc servants wIth one year
of servIce or more were paid m accordance wIth artIcle 53 (full-tIme) or artIcle 78 (part-
tune) of the collectIve agreement As the amount paid under the collectIve agreement
equals the aIllount to whIch the umon contends these employees were entItled under the
Act, no claim for addItIonal severance pay IS advanced on theIr behalf UnclassIfied
employees wIth five years of employment or more also receIved severance pay m the
amount to whIch a statutory entItlement IS asserted. The umon now seeks severance pay
for all other employees
The umon contends all employees also were entItled to 16 weeks' notIce of
tennmatIOn or pay m heu of such notIce UnclassIfied employees wIth three months of
servIce or more, who dId not take aJob wIth a receIvmg hospItal, got sIxteen weeks of
notIce and/or pay The umon now seeks tennmatIOn pay for all other employees
3
II
EntItlement to severance pay IS governed m part by sectIOn 64 of the Employment
Standard~ Act SectIOn 64( 1) states
An employer who severs an employment relatIOnshIp wIth an employee
shall pay severance pay to the employee if the employee was employed by
the employerforfive years or more (emphasIs added)
As noted by counsel for the employer, anyone employed for less than five years IS not
entItled to severance pay The umon's attempt to secure such pay for employees wIth
less than five years of employment must faIl for thIS reason alone
III
EntItlement to tennmatIOn notIce or pay m heu IS governed m part by sectIOn 54 of the
Employment Standard~,' Act statmg
No employer shall tennmate the employment of an employee who has
been contznuously employedfor three months or more unless the employer,
(a) has gIven to the employee wntten notIce of termmatIOn m accordance
wIth sectIOn 57 or 58 and the notIce has expIred, or
(b) has comphed wIth sectIOn 61 (emphasIs added)
SectIOns 57 and 58 deal wIth termmatIOn notIce and sectIOn 61 deals wIth pay m heu
As noted by the employer, sectIOn 54 clearly mdIcates anyone employed for less than
three months has no entItlement to notIce or pay The umon' s attempt to secure
termmatIOn pay for employees wIth less than three months of employment faIls for thIS
reason alone
IV
Counsel for the employer contends classIfied employees have no entItlement to
termmatIOn or severance pay because they resIgned theIr employment wIth the crown
4
ThIS argument IS based upon artIcles 6 4 and 6 5 of AppendIx 18 to the collectIve
agreement
6 4 Employees who accept a Job offer m accordance wIth ArtIcle 6 1 1
wIth a receIvmg employer wlll 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)
6 5 If an employee refuses a Job offer whIch provIdes a salary of at least
85% of the respectIve employee's weekly salary at the tune of the
transfer and recogmzes the serVIce and semonty m the Ontano Pubhc
ServIce (OPS) of each employee for the purpose of quahficatIOn for
vacatIOn, benefits (except pensIOn), layoff, Job competItIOn, severance
and tennmatIOn payments to the extent that they are provIded m the
proponent's workplace, the employee shall be deemed to have reslgned
effectIve the date of the transfer of theIr Job and no other prOVISIOn of
the collectIve agreement wIll apply except for ArtIcle 53 or 78
(T ermmatIOn Pay)
As all classIfied employees receIved Job offers from one of the receIvmg hospItals, I
was urged to conclude they resIgned from theIr employment wIth the crown
An employee IS entItled to notIce of tennmatIOn or pay m heu when he or she has
been termmated wIthm the meamng of sectIOn 56( 1) of the Employment Standard~,' Act
The relevant portIOns of thIS sectIOn state
An employer tennmates the employment of an employee for the purposes
of sectIOn 54 If,
(a) the employer dIsmIsses the employee or otherwIse refuses or IS unable
to contmue employmg hun or her,
(b )the employer constnlctIvely dIsmIsses the employee and the employee
resIgns from Ius or her employment m response to that wItlun a
reasonable penod of tIme
Beanng m mmd the prOVISIOns m AppendIx 18 deemmg classIfied employees to
have resIgned, counsel for the umon contends they resIgned theIr employment wIth the
5
crown after bemg constructIvely dIsmIssed. Accordmg to thIS hne of argument, they
were tennmated wItlun the meanmg of paragraph (b) of sectIOn 56( 1)
I agree these employees were tennmated under sectIOn 56( 1), but I arrIve at tlus
conclusIOn by a dIfferent route In my VIew, they fall under paragraph (a) because the
employer refused to contmue to employ them They were forced to leave theIr
employment wIth the crown when the facIlItIes where they had worked were transferred
to the receIvmg hospItals, they dId not leave crown employment on theIr own mItIatIve
In concludmg classIfied employees were termmated under sectIOn 56( 1) of the
Act, I have not overlooked the references to deemed resIgnatIOn m AppendIx 18 of the
collectIve agreement The relatIOnshIp between the agreement and statutory
employment standards IS governed by sectIOn 5 of the Act
(1) SubJect to subsectIOn (2), no employer or agent of an employer and no
employee or agent of an employee shall contract out of or Waive an
employment standard and any such contractmg out or Waiver IS VOId.
(2) If one or more prOVISIOns m an employment contract or m another Act
that dIrectly relate to the same subJect matter as an employment
standard provIde a greater benefit to an employee than the employment
standard, the prOVISIOn or proVIsIOns m the contract or Act apply and
the employment standard does not apply
The employer does not rely upon subsectIOn (2) by suggestmg the collectIve agreement
provIdes a greater benefit than notIce or pay m heu In the absence of a greater benefit,
subsectIOn (1) prohibIts contractmg out of an employment standard. Accordmgly, the
deemed resIgnatIOn proVIsIOns m AppendIx 18 of the agreement cannot prevail over the
employment standard governmg termmatIOn
The same hne of reasomng apphes to severance pay SectIOn 63( 1) states
An employer severs the employment of an employee If,
(a) the employer dIsmIsses the employee or refuses to contmue employmg
the employee
6
Former employees of the crown at the psychIatnc mstItutIOns were severed wIthm the
meanmg of tlus sectIOn, because the employer refused to contmue to employ them The
employer does not suggest AppendIx 18 to the collectIve agreement confers a greater
benefit than severance pay under the Act In the absence of a greater benefit, the
deemed resIgnatIOn proVIsIOns m AppendIx 18 cannot prevail over the employment
standard governmg severance
V
Employer counsel submIts any claim to eIther tennmatIOn payor severance pay, made
on behalf of an employee who accepted an offer of employment wIth a receIvmg
hospItal, IS defeated by sectIOn 9 of the Employment Standard~,' Act concernmg the sale
of a busmess The relevant portIOns of tlus sectIOn state
(1) If an employer sells a busmess or part of a busmess and the purchaser
employs an employee of the seller, the employment of the employee
shall be deemed not to have been termmated or severed for the
purposes of tlus Act and Ius or her employment wIth the seller shall be
deemed to have been employment wIth the purchaser for the purpose of
any subsequent calculatIOn of the employee's length or penod of
employment
(3)In thIS sectIOn "sells" mcludes leases, transfers or dIsposes many
other manner, and "sale" has a correspondmg meanmg
Umon counsel acknowledges the transfer of psycluatnc facIlItIes constItuted the
sale of a busmess wIthm the meanmg of sectIOn 9 He concedes the Act would not have
been vIOlated If tlus sectIOn had been mvoked to deny severance pay and tennmatIOn
notIce or pay m heu to all employees transfernng to the receIvmg hospItals However,
counsel argues the employer cannot use sectIOn 9 m an arbItrary and dIscnmmatory
manner, so as to "pIck and choose" among members of the bargammg umt As a legal
foundatIOn for tlus argument, counsel for the umon cItes 3 cases deahng the exerCIse of
management nghts (1) Unzted Parcel Servlce and Teamsters UnlOn (1981), 29 L.A.C
7
(2d) 202 (Burkett), (2) OPSEU (Pdon) and Mlnzstry ofCommunzty Servlces, GSB FIle
No 1254/99, decIsIOn dated November 5, 2001 (Brown), and (3) OPSEU and Mlnzstry
ofTransportatlOn, GSB FIle No 0211/02, decIsIOn dated Apnl 9, 2002 (Brown)
Employer counsel contends these cases have no beanng upon entItlement to statutory
benefits
I begm my analysIs by consIdenng whether there IS a factual basIs for the umon's
allegatIOn SectIOn 9 apphes only to employees who transferred to one of the receIvmg
hospItals To prove the employer has used sectIOn 9 m an arbItrary or dIscnmmatory
manner, the umon must demonstrate management has mvoked tlus sectIOn to deny
statutory benefits to some transferred employees, whIle affordmg the same benefits to
other such employees
WIth respect to notIce of tennmatIOn or pay m heu, I have already detennmed
employees wIth less than three months of employment have no entItlement under the
Act ThIS nllmg rests upon the clear language of sectIOn 54 and IS not based m any way
upon the apphcatIOn of sectIOn 9 Accordmgly, the set of employees whose entItlement
to tennmatIOn notIce or pay could be affected by an arbItrary or dIscnmmatory
apphcatIOn of sectIOn 9 IS hmIted to those who not only took a Job wIth one of the
receIvmg hospItals but also had worked at least three months for the crown Were some
of these employees treated more favourably than others through a selectIve rehance on
sectIOn 9? As the stIpulatIOns made by counsel mdIcate none of the employees m thIS
set receIved notIce of termmatIOn or pay m heu, there IS no factual basIs for the
allegatIOn of an arbItrary or dIscnmmatory apphcatIOn of sectIOn 9
WIth respect to severance pay, I have already determmed employees wIth less
than five years of employment have no entItlement under the Act ThIS nllmg rests
upon the clear language of sectIOn 64( 1) and IS not based m any way upon the
apphcatIOn of sectIOn 9 Accordmgly, the set of employees whose entItlement to
statutory severance pay could be affected by an arbItrary or dIscnmmatory apphcatIOn
8
of sectIOn 9 IS hmIted to those who not only took a Job wIth one of the receIvmg
hospItals but also had worked at least five years for the crown
Most of the employees m tlus set receIved severance pay m the amount to whIch
the umon asserts an entItlement ClassIfied employees wIth at least one year of servIce
were paid under sectIOns 53 or 78 of the collectIve agreement As the Act has no
beanng upon such contractual payments, the employer could not have aVOIded paymg
these classIfied employees by relymg upon sectIOn 9 The statutory severance payments
made to the subset of unclassIfied employees wIth five years of employment or more
could have been aVOIded If the employer had rehed upon sectIOn 9 It was not mvoked
to deny them severance pay To estabhsh a factual basIs for the allegatIOn of an
arbItrary or dIscnmmatory use of sectIOn 9, the umon must pomt to another subset of
employees, who also took Jobs wIth the receIvmg hospItals and had five or more years
of employment, whose entItlement to statutory severance pay would be defeated by the
employer's current rehance on sectIOn 9 As the stIpulatIOns of counsel do not mdIcate
whether such a subset eXIsts, I remIt tlus questIOn to the partIes Only If tlus factual
questIOn IS answered m the affinnatIve wIll there be any need to address the legal Issue
of whether the cases cIted by the umon apply to statutory benefits
Dated at Toronto thIS 29th day of Apnl2003
~
/,r.<"
;: -' ./. .
~~,.
. ~cLdBrown '
VIce-Chair
9
APPENDIX "A"
Correspondence of GSB File Numbers and OPSEU File Numbers
GSB# Union # GSB# Union # GSB# Union #
1250/00 00U146 1688/00 01 F066 1702/00 01F290
1250/00 00U147 1688/00 01 F067 1702/00 01 F291
1570/00 01 U018 1688/00 101 F068 1702/00 101 F292
I
1606/00 01 U011 1688/00 01 F069 1702/00 01F293
1608/00 01 U012 1688/00 01F070 1734/00 01F100
1609/00 01 U013 1688/00 01F071 1734/00 01 F1 01
1613/00 01 F028 1688/00 101 F072 1734/00 101F102
1649/00 01 F035 1688/00 01F073 1734/00 01F103
1650/00 01 F036 1688/00 01 F074 1734/00 01F104
1651/00 b1F037 1688/00 01F075 1734/00 01F105
1652/00 01 F038 1688/00 01 F076 1734/00 101 F1 06
1653/00 01 F039 1688/00 101 F077 1734/00 01F107
1654/00 01 F040 1688/00 01F078 1734/00 01F108
1655/00 101 F041 1688/00 01F079 1734/00 01F109
1688/00 01 F080 1734/00 01F110
1656/00 01 F042 1688/00 101 F081 1734/00 .01F111
1657/00 01 F043
1658/00 01 F044 1688/00 01 F082 1734/00 01F112
1688/00 01 F083 1734/00 01F113
1659/00 01 F045 1688/00 01 F084 1734/00 01F114
1660/00 01 F046 1688/00 101 F085 1734/00 101F115
1661/00 01 F047 1688/00 01 F086 1734/00 01F116
1662/00 01 F048 1688/00 01 F087 1734/00 01F117
1663/00 01 F049 1688/00 01 F088 1734/00 01F118
1664/00 01 F050 1688/00 101 F089 1734/00 01F119
1665/00 01 F051 1688/00 01 F090 1734/00 '01 F120
1666/00 01 F052 1688/00 01 F091 1734/00 01F121
1688/00 01 F053 1688/00 01 F092 1734/00 01F122
1688/00 01 F054 1688/00 01 F093 1734/00 01F123
1688/00 01 F055 1688/00 01 F094 1734/00 01F124
1688/00 101 F056 1688/00 01 F095 1734/00 01F125
1688/00 01 F057 1688/00 01 F096 1734/00 01F126
1688/00 01 F058 1688/00 01 F097 1734/00 01F127
1688/00 01 F059 1688/00 01 F098 1734/00 01F128
1688/00 01 F060 1689/00 01 U01 0 1734/00 01F129
1688/00 101 F061 1699/00 01F372 1734/00 01F130
1688/00 01 F062 1702/00 01F286 1734/00 01 F131
1688/00 01 F063 1702/00 01F287 1734/00 01F132
1688/00 01 F064 1702/00 101 F288 1734/00 b1F133
1688/00 p1F065 1702/00 01F289 1734/00 01F134
10
GSB# Union # IGSB# Union # GSB# Union #
1734/00 01F135 1 740/00 01F276 1 747/00 01F240
1734/00 01F136 1 740/00 01F277 1 747/00 01F241
1734/00 '01 F137 1 740/00 '01 F278 1 747/00 01F242
1734/00 01F138 1 740/00 01F279 1782/00 01F302
1734/00 01F139 1 740/00 01F280 1794/00 01F229
1734/00 01F140 1 741/00 01 F281 1794/00 01F230
1734/00 101 F 141 1 741/00 101F282 1794/00 01 F231
1734/00 01F142 1 741/00 01F283 1794/00 01F232
1734/00 01F143 1 741/00 01F284 1794/00 01F233
1734/00 01F144 1 741/00 01F285 1794/00 01F234
1734/00 01F145 1 744/00 101 F243 1794/00 101 F235
1734/00 101 F146 1 744/00 01F244 1794/00 01F236
1734/00 01F147 1 744/00 01F245 1 804/00 01F160
1734/00 01F148 1 744/00 01F246 1 804/00 01 F161
1734/00 01F149 1 744/00 101 F247 1 804/00 101 F162
1734/00 101 F150 1 745/00 1 804/00 01F163
01F248
1734/00 01 F151 1 745/00 01F249 1 804/00 01F164
1734/00 01F152 1 745/00 01F250 1 804/00 01F165
1734/00 01F153 1 745/00 101 F251 1 804/00 01F166
1734/00 e1F154 1 745/00 01F252 1 804/00 101F167
1734/00 01F155 1 745/00 01F253 1 804/00 01F168
1734/00 01F156 1 745/00 01F254 1 804/00 01F169
1734/00 01F157 1 745/00 01F255 1 804/00 01F170
1734/00 101 F158 1 745/00 101 F256 1 804/00 101 F171
1734/00 01F159 1 745/00 01F257 1 804/00 01F172
1735/00 01F212 1 745/00 01F258 1 804/00 01F173
1735/00 01F213 1 745/00 01F259 1 804/00 01F174
1735/00 01F214 1 746/00 01F260 1 804/00 01F175
1735/00 101 F215 1 746/00 01F261 1813/00 101 F188
1735/00 01F216 1 746/00 01F262 1813/00 01F189
1735/00 01F217 1 746/00 01F263 1813/00 01F190
1735/00 01F218 1 746/00 01F264 1813/00 01 F191
1736/00 e1F219 1 746/00 01F265 1813/00 101 F192
1736/00 01F220 1 746/00 01F266 1813/00 01F193
1736/00 01F221 1 746/00 01F267 1813/00 01F194
1736/00 01F222 1 746/00 01F268 1813/00 01F195
1737/00 01F223 1 746/00 101 F269 1813/00 101 F196
1737/00 101 F224 1 746/00 01F270 1813/00 01F197
1737/00 01F225 1 746/00 01F271 1813/00 01F198
1738/00 01F226 1 746/00 01F272 1813/00 01F199
1738/00 101 F227 1 746/00 101 F273 1813/00 01F200
1738/00 01F228 1 747/00 1813/00 101 F201
01F237
1 740/00 01F274 1 747/00 01F238 1813/00 01F202
1 740/00 01F275 1 747/00 01F239 1813/00 01F203
11
GSB# Union #
1813/00 01F204
1813/00 01F205
1814/00 01F206
1814/00 01F207
1814/00 01F208
1814/00 101 F209
1814/00 01F210
1814/00 01 F211
1 822/00 01F178
1912/01 ,00U157