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Home My WebLink About2003-2051.Lall.05-01-18 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# 2003-2051 UNION# 2002-0504-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Lall ) Union - and - The Crown In RIght of Ontano (Mimstry of Health and Long-Term Care) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION Mary Anne Kuntz ActIng SupervIsor Contract Enforcement Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Lucy McSweeney Semor Counsel Management Board Secretanat HEARING January 12, 2005 2 Award The gnevor PhIlIp Lall, alleges that the Employer has Improperly demed hIm a separatIOn allowance as set out In ArtIcle 203 of the collectIve agreement, even though he elected Factor 80 when notIfied of hIS lay-off For all of the reasons set forth below I conclude that the gnevance must be dIsmIssed. Facts The gnevor served as a Systems Officer 3 In the Mimstry of Health and Long Term Care, and had a servIce date of August 30 1976 On June 20 2000 the Mimstry advIsed affected staff of the ImplementatIOn of a "New Integrated Network ServIce" whIch would be provIded "through a pnvate sector network Integrator" The Mimstry advIsed that It would be commenCIng the "Request for Proposals" (RFP) process In July 2000 and that the project would take some fifteen to eIghteen months to Implement. On the same date the affected employees, IncludIng the gnevor were advIsed that they had the optIOn to be Included In the RFP or not, and further notIng two chOIces If they elected not to be Included In the RFP Under the first optIOn, the employee would be declared surplus, wIth the employee leavIng the publIc servIce ImmedIately wIth certaIn benefits (specIfically SIX months pay In lIeu under ArtIcle 20.2 and the greater of separatIOn allowance under ArtIcle 20 3 or enhanced severance under paragraph 4 of AppendIx 9 plus termInatIOn pay In accordance wIth ArtIcle 53 or 78) 3 Under the second optIOn, an employee could use the surplus package to bndge to theIr first elIgIble retIrement, USIng paid and unpaid leaves to bndge (pursuant to SectIOn 2, AppendIx 18) to theIr retIrement date Employees choOSIng thIS optIOn, however were reqUIred to "Waive all nghts to dIsplacement, redeployment, pay In lIeu and recall " The gnevor selected both optIOns under the category of beIng removed from the RFP lIst, apparently because It was unclear at the tIme whether he would be elIgible for Factor 80 On August 23 2002, the Mimstry advIsed the gnevor In accordance wIth AppendIx 18 SectIOn 5 of the collectIve agreement, whIch pertaIns to employees who elect not to be Included In an RFP that he was declared surplus effectIve August 27 2002 In the Mimstry's letter he was advIsed of two optIOns FIrst, he could elect "to receIve the full package as per AppendIx 18 ArtIcle 5.2, under whIch he would eXIt the publIc servIce ImmedIately and receIve pay In lIeu of notIce under ArtIcle 202, and eIther a separatIOn allowance under ArtIcle 203 or enhanced severance payment per paragraph 4 of AppendIx 9 termInatIOn payments per eIther ArtIcle 53 or 78 and $500 for career transItIOn servIces OptIOn #2 was set forth as follows OptIOn #2 You may elect to retIre under the Surplus Factor 80 program Should you elect thIS optIOn you wIll remaIn on payroll for your 6 month notIce penod and wIll retIre at that tIme Should you elect thIS optIOn you wIll forfeIt any further surplus entItlements IncludIng pay In lIeu and enhanced severance You remaIn elIgIble to receIve legIslated severance Mr Lall elected OptIOn #2 Mr Lall retIred at the end of hIS notIce penod and IS reCeIVIng hIS full, actuanally unreduced penSIOn. 4 In hIS gnevance, Mr Lall alleges that the Mimstry should have also paid hIm a separatIOn allowance under ArtIcle 20 3 That provIsIOn provIdes as follows 20 3 1 Where an employee resIgns and hIS or her resIgnatIOn takes effect wIthIn one (1) month after reCeIVIng surplus notIce, he or she shall be entItled to a separatIOn allowance of two (2) weeks' salary for each year of contInUOUS servIce to a maXImum of twelve (12) weeks' pay An employee who resIgns pursuant to ArtIcle 20 3 wIll not be elIgIble for any other entItlements under ArtIcle 20 203.2 Where an employee resIgns later than one (1) month after reCeIVIng surplus notIce he or she shall be entItled to a separatIOn allowance of four (4) weeks' salary An employee who resIgns pursuant to ArtIcle 20 3 wIll not be elIgIble for any other entItlements under ArtIcle 20 Decision SIgmficantly the partIes to the collectIve agreement, the Umon and the Employer agree that Mr LallIs not entItled to a separatIOn allowance under ArtIcle 20 SInce he elected to retIre under the Surplus Factor 80 program Consequently there IS no dIspute between the partIes to the collectIve agreement. On thIS basIs alone, the gnevance must be dIsmIssed. I further conclude that the gnevance should be dIsmIssed on ItS ments The language of ArtIcle 20 3 clearly applIes to an employee who "resIgns" It does not apply to an employee who "retIres" There IS a sIgmficant dIfference under thIS collectIve agreement between an employee who resIgns and one who retIres In my VIew Mr Lall dId not "resIgn" hIS employment as contemplated by eIther ArtIcle 20 3 1 or 20 3 2 Instead, as set out In OptIOn #2, he remaIned on the payroll for hIS SIX months notIce penod and then retIred at that tIme Further the purpose of ArtIcle 20 IS to provIde a mynad of benefits to employees who have been surplused and must leave the publIc servIce, wIthout a job or Income It does not 5 pertaIn to employees who at the end of theIr notIce penod, are entItled to a full, actuanally unreduced penSIOn. The partIes' dIstInctIOn between an employee who resIgns and one who retIres IS further seen In AppendIx 9 paragraph 4 In that provIsIOn, the partIes provIde for enhanced severance for employees who are laid off or who have resIgned and receIved theIr pay In lIeu of notIce It states that employees who are entItled to amounts under ArtIcle 20 3 (SeparatIOn Allowance) are to receIve the greater of those amounts or the amount specIfied In AppendIx 9 paragraph 4 It further states "ThIS paragraph wIll not apply to employees who are elIgIble to retIre and receIve an actuanally unreduced pensIOn." The OPSEU PensIOn Trust documents and InformatIOn sheets are also very clear that an employee who elects the Surplus Factor 80 optIOn Waives all other surplus entItlements Clearly the separatIOn allowance provIded for In ArtIcle 203 IS a surplus entItlement that IS waived when an employee elects to retIre under Factor 80 In OPSEU (Plaza) and Management Board Secretariat (1997), GSB No 0481/96 (FIsher Vice-Chair), the Board held, In relatIOn to the precedIng collectIve agreement, that In "order to qualIfy for the Factor 80 Program, the employee must Waive all theIr surplus nghts, whIch Includes not only the nght to recall, tUItIOn assIstance but also the separatIOn allowance under ArtIcle 243 1 " The same conclusIOn applIes to the separatIOn allowance under ArtIcle 203 6 AccordIngly I find that the gnevance must be dIsmIssed. Issued at Toronto thIS 18th day of January 2005 bYU1't61