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HomeMy WebLinkAbout2000-1594.Bye et al.03-07-16 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# 1594/00 0503/01 1387/02 UNION# 01B057 01B058 01B059 01B060 01U058 02U121 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIo PublIc ServIce Employees Umon (Bye et al ) Grievor - and - The Crown III RIght of OntarIo (Mimstry ofCommumty, FamIly and ChIldren's ServIces and Management Board SecretarIat) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Ed Holmes Ryder WrIght Blair & Doyle Bamsters and SOlICItorS FOR THE EMPLOYER John SmIth Semor Counsel Management Board SecretarIat HEARING June 18 2003 2 DECISION SIX gnevances were consohdated for heanng two umon gnevances, FIle No 0503/01 and FIle No 1387/02 respectIvely, and four IndIVIdual gnevances, FIle No 1594/00 All of these gnevances anse out of the transfer of work from the provIncial government to another employer under Schedule A or Schedule C of AppendIx 18 to the collectIve agreement The common Issue IS whether severance pay IS owed to employees, wIth between one and five years of servIce, as a result of theIr work beIng transferred. The umon claims all such employees are entItled to severance pay under artIcle 53 or artIcle 78 of the agreement The employer contends the only employees entItled to severance pay under eIther of these artIcle are those who elected not to be Included In a request for proposals (RFP) I EntItlement to severance pay IS governed by artIcle 53 4 relatIng to full-tIme employees and artIcle 78 1 relatIng to part-tIme employees As the relevant language In these two prOVISIOns IS IdentIcal, only the apphcable portIOn of the fonner artIcle need be reproduced. 53 4 An employee, (a) who has completed a mInImUm of one (1) year of contInUOUS servIce and who ceases to be an employee because of, (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 contInUOUS 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 3 (2) abandonment of posItIOn under sectIOn 20 of the P S.A., IS entItled to severance pay II The apphcatIOn of artIcles 53 and 78 to employees, wIth between one and five years of serVIce, whose work had been transferred to a new employer under Schedule B of AppendIx 18, was addressed In Mlnlstry of Health and OPSEU, FIle No 1723/99, decIsIOn dated November 9, 2000 (Brown) The facts In that case are summanzed In the first paragraph of the award. The umon has filed two pohcy gnevances, one relatIng to the transfer of BrockvIlle PsychIatnc HospItal and the other relatIng to the transfer of HamIlton Psyclllatnc HospItal Each of these InstItutIOns IS about to be transferred to a local hospItal In the broader pubhc sector Pursuant to a transfer agreement negotIated wIth the crown, each reCeIVIng facIhty has made a offer of employment to all affected employees on terms and condItIons whIch Include a salary of at least 85% of theIr former earnIngs and recogmtIOn of servIce and semonty acqUIred In the Ontano pubhc servIce Transfers under Schedule B of AppendIx 18 are governed by sectIOn 6 of that appendIx In Mlnlstry of Health, I made the folloWIng comments about sectIOn 6 SectIOn 6 of AppendIx 18 dIvIdes employees Into three categones, (1) those who accept aJob offer from the reCeIVIng employer, (2) those who dechne a "good" Job offer; and (3) those who reject a "poor" Job offer Under sectIOn 6 6, employees who dechne "poor" Job offers maIntaIn theIr entItlements under the collectIve agreement IncludIng artIcle 20 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 concernIng employees who dechne a "good" Job offer Nor are they preserved by sectIOn 6 4 concernIng employees who transfer from the crown to the reCeIVIng employer Employees to whom these latter two sectIOns apply are deemed to have resIgned and theIr contractual nghts are expressly hmIted to those found In artIcle 53 TheIr entItlements under artIcle 20 are abrogated. In 4 short, they forfeIt theIr artIcle 20 nghts but maIntaIn theIr nghts under artIcle 53 SectIOn 6 1 1 reqUIres the mInIstry to propose that the reCeIVIng 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 mInIstry offenng a financIal IncentIve up to the amount of enhanced severance pay for the employees who "wIll be declared surplus" If the reCeIVIng employer InItIally suggests offers that Include 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 calculatIng the financial IncentIve In thIS sense, sectIOn 6 1 2 charactenzes as surplus an employee wIth a "good" offer (pages 7, 8 and 10) WIth these comments In mInd, I turned to consIder entItlement to severance pay 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 tlllS questIOn IS not ObVIOUS EntItlement to severance pay under thIS 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 IndIcate 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 On the other hand, the entItlement of employees to severance pay under artIcle 53 IS exphcItly preserved by sectIOns 6 4 and 6 5, wIthout any dIstInctIOn beIng drawn between employees wIth more than five years of servIce and those wIth less ThIS 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 In the sense that they are superfluous to the needs of the pubhc serVIce after the date of transfer, as acknowledged by the use of the word "surplus" In sectIOn 6.2 1 Because they receIve notIce of theIr redundant status In the pubhc servIce before the transfer occurs, theIr deemed resIgnatIOn on the 5 date of transfer mIght be said to occur dunng theIr "surplus notIce penod" wIthIn the meanIng of artIcle 53 4(a)( 4) ThIS IS the essence of the umon's argument The foregoIng 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 In AppendIx 18 to negate artIcle 20 nghts and to reaffirm artIcle 53 nghts, they faIled to clearly IndIcate theIr IntentIOn regardIng 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 mInds to tlllS preCIse Issue What beanng does thIS ambIgUIty have upon the proper InterpretatIOn 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 one and five years of serVIce would have receIved severance pay under artIcle 53 4(a)(4) If she had resIgned from the pubhc servIce after reCeIVIng offiCial notIce that the facIhty where she worked was about be transferred from the crown to another employer The nght to severance pay In these CIrcumstances was clearly expressed In thIS artIcle I conclude tlllS entItlement contInues to eXIst today because It was not clearly negated when the partIes fashIOned AppendIx 18 (pages 10 to 12) III Transfers of work to a new employer under Schedule A are governed by sectIOn 5 of AppendIx 18 The relevant portIOns of tlllS sectIOn state 5 1 In respect to the transfer of bargaInIng umt functIOns or Jobs as the result of Schedule A transfers, the employees that the Employer detennInes wIll be Included In the Request for Proposal (RFP) wIll be notIfied not less than ten (10) workIng days pnor to the release of the RFP that theIr Jobs wIll be Included In the RFP and provIded the opportumty to elect In wntIng wItllln five (5) workIng days of beIng notIfied, not to be Included In the RFP In default of the electIOn, the employee IS deemed to be Included In the RFP 5 2 Employees who elect not to be zncluded zn the RFP wlll be declared surplus The date of the surplus notIce wIll be detennIned by the employer 6 Upon receIpt of the surplus notIce, the affected employee wIll eXIt the OPS Immediately, these employees wIll receIve only the benefits set out below. (n) termInatIOn payments In accordance wIth ArtIcle 53 or 78 5 5 Employees zncluded zn the RFP and who do not accept a Job offer under th,s prOVlswn wlll be deemed to have reslgned and no other prOVISIOns of the CollectIve Agreement wIll apply except for ArtIcle 53 or 78 (T ennInatIOn Pay) 5 6 Employees who accept a Job offer zn accordance wlth Artlcle 5 3 wlth a recelvzng employer wlll be deemed to have reslgned effectIve the date they commence employment wIth the reCeIVIng employer, and no other prOVISIOns of the CollectIve Agreement wIll apply except for ArtIcle 53 or 78 (TermInatIOn Pay) (emphasIs added) AccordIng to sectIOn 5.2, employees who elect not to be Included In an RFP "wIll be declared surplus" As noted by employer counsel, the clear nnphcatIOn of tlllS sectIOn IS that those makIng the OpposIte electIOn-I e to be Included In the RFP-wIlI not be declared surplus Employees who elect to be Included In an RFP "wIll be deemed to have resIgned" If they reject aJob offer from the new employer (sectIOn 5 5) or If they accept one (sectIOn 5 6) In short, employees who employees who opt out of an RFP are declared surplus, whereas those who opt In are not declared surplus and are deemed to have resIgned. ThIS treatment under sectIOn 5 of employees affected by a Schedule A transfer may be contrasted wIth how sectIOn 6 treats employees falhng under Schedule B SectIOn 6 1.2 IndIcates the entIre set of such employees "wIll be declared surplus" The subset of employees who take aJob wIth the reCeIVIng employer (sectIOn 6 4), and the subset who reject a "good" Job offer (sectIOn 6 5), are "deemed to have resIgned." ResIgmng and beIng declared surplus are normally understood to be the OpposIte of one another The ambIgUIty In sectIOn 6 anses from the apparent conflIct between deemIng certaIn employees to have resIgned whIle also IncludIng the very same employees among those declared surplus There IS no such conflIct nor ambIgUIty In sectIOn 5 Employees who opt 7 out of an RFP are declared surplus Those who opt In are not declared surplus, Instead they are deemed to have resIgned It IS only reasonable to assume the dIvIsIOn of employees Into two categones-those who are declared surplus under sectIOn 5.2 and those who are deemed to have resIgned under sectIOns 5 5 or 56-was Intended to serve some purpose The most ObVIOUS purpose IS to dIfferentIate between these two groups of employees In relatIOn to severance pay In comIng to thIS conclusIOn, I note sectIOns 5.2, 5 5 and 5 6 all Include a reference to artIcles 53 and 78 governIng entItlement to severance pay AccordIng to those artIcles, an employees wIth between one and five years of servIce IS entItled to such pay If the IndIVIdual IS released from employment, but not If he or she resIgns wIthout havIng been declared surplus As employees who opt out of an RFP are declared surplus, those wIth between one and five years of servIce are entItled to severance pay because they have been released from employment As employees who opt Into an RFP are not declared surplus and are deemed to have resIgned, those wIth between one and five years of servIce are not entItled to severance pay IV Transfers of work to a new employer under Schedule C are governed by sectIOn 6c of AppendIx 18 The relevant portIOns of thIS sectIOn state 6c 1 In respect to the transfer of bargaInIng umt functIOns or Jobs as the result of Schedule C transfers, the employees that the Employer determInes wIll be Included In the Request for Proposal (RFP),wIlI be notIfied not less than ten (10) workIng days pnor to the release of the RFP that theIr Jobs wIll be Included In the RFP and provIded the opportumty to elect In wntIng wIthIn five (5) workIng days of beIng notIfied, not to be Included In the RFP In default of the electIOn, the employee IS deemed to be Included In the RFP 6c 2 Employees who elect not to be zncluded zn the RFP wlll be declared surplus The date of the surplus notIce wIll be determIned by the employer 8 Upon receIpt of the surplus notIce, the affected employee wIll eXIt the OPS Immediately, these employees wIll receIve only the benefit set out below. (11) tennInatIOn payments In accordance wIth ArtIcle 53 or 78 6c 3 1 For employees electIng to be Included In the RFP, the Employer shall Include, In the RFP, the mandatory reqUIrement that proponents must commIt In theIr proposal to make Job offers to the ldentffied classffied OPSEU employeesfor 100% of the posltlOns, zn the recelvzng employer's workplace, whlch are created as a result of the RFP 6c 3 3 rf more employees elect to be zncluded zn the RFP, zn accordance w lth Artlcle 6C 1 1, than the full complement of posltlOns created by the RFP, the proponent must make Job offers on the basls ofsenlOrzty Employees may declzne Job offers zn descendzng order ofsenlOrzty untIl the number of persons who have dechnedJob offers IS equal to the dIfference between the number of employees In the RFP and the number of posItIOns created by the RFP These employees wlll be entltled to all rzghts and entltlements zn Artlcle 6C 2 6c 3 3 1 Other employees who declzne Job offers to the extent that the full complement of posltlOns created cannot be filled, wlll be deemed to have reslgned and no other prOVISIOns of the CollectIve Agreement wIll apply except for ArtIcle 53 or 78 (TennInatIOn Pay) 6c 5 Employees zncluded zn the RFP and who do not accept aJob offer under th,s prOVlSlOn, wlth the exceptlOn of employees covered by Artlcle 6C 3 3, wlll be deemed to have reslgned and no other prOVISIOns of the CollectIve Agreement wIll apply except for ArtIcle 53 or 78 (TennInatIOn Pay) 6c 6 Employees who accept a Job offer In accordance wIth ArtIcle 6c 3 4 wIth a reCeIVIng employer wIll be deemed to have resIgned 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 (TennInatIOn Pay) (emphasIs added) 9 SectIOn 6c IS IdentIcal to sectIOn 5 In two Important respects (1) employees who elect not to be Included In an RFP "wIll be declared surplus" (sectIOn 6c.2), and (2) employees who accept aJob wIth the reCeIVIng employer are not declared surplus and are "deemed to have resIgned" (sectIOn 6c 6) F or present purposes, there IS one Important dIfference between sectIOn 6c and sectIOn 5 SectIOn 5 3 states an RFP must reqUIre proponents to offer Jobs to all employees who elect to be Included In the RFP In other words, everyone Included In the RFP IS guaranteed aJob offer WIth a enough work for all, employees who opt Into an RFP and later dechne an offer of employment are "deemed to have sIgned." In contrast, sectIOn 6c 3 1 states an RFP must reqUIre proponents to offer to employees who opt Into the RFP 100% of the Jobs created by the transfer of work, but sectIOn 6c 3 3 acknowledges the number of employees optIng In may exceed the number of Jobs created by the transfer and therefore on offer AccordIng to sectIOn 6c 3 3, when there IS not enough work to go around, "the proponent must make Job offers on the basIs of semonty" and "employees may dechne Job offers In descendIng order of semonty" so long as no Jobs go unfilled. SectIOn 6c 3 3 goes on to say employees who declIne a Job offer In tlllS way "wIll be entItled to all the nghts and entItlements" afforded to those who opt out under sectIOn 6c.2 All others who dechne Job offers are "deemed to have resIgned" by sectIOn 6c 3 3 1 and 6c 5 How do artIcles 53 and 78 apply to employees, wIth between one and five years of serVIce, whose work IS transferred to a new employer under Schedule C? As employees who opt out of an RFP are declared surplus, they are entItled to severance pay as havIng been released from employment The same entItlement IS enjoyed by employees who opt Into an RFP and then later dechne aJob offer under sectIOn 6c 3 3 All other employees who declIne an offer of employment are not entItled to severance pay, because they are declared surplus and are 10 deemed to have resIgned. The same IS true of employees who accept aJob wIth the new employer Dated at Toronto thIS 16th day of July 2003 ~~ I RIchard Brown, VIce-Chair