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HomeMy WebLinkAbout2008-0041.Samsone.09-01-07 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-0041 UNION#2008-0582-0023 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Samsone) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Ken Petryshen FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Peter Dailleboust Ministry of Government Services Counsel HEARING November 13, 2008. 2 Decision [1] In a grievance dated February 25, 2008, Mr. R. Samsone claims that, ?the Employer has failed to provide me with an appropriate assignment in violation of the C/A, including Article 42 and related legislation?. He requests in his grievance that, ?I be immediately assigned to the ESRO position in Whitby that I am currently occupying in an acting capacity?? The dispute between the parties concerns the interpretation of Article 42.10 of the Collective Agreement and whether the provisions of Article 20B (Employment Stability) are available to Mr. Samsone in the circumstances. [2] Counsel provided me with the undisputed facts giving rise to the grievance. Mr. Samsone was a Correctional Officer (?CO?), with a home position at the Toronto East Detention Centre. Following an incident, Mr. Samsone developed a medically verified Post Traumatic Stress Disorder (?PTSD?) and commenced a leave of absence. Beginning in the summer of 2005, he received pay from the Short Term Sickness Plan and then benefits from the Long Term Income Protection (?L.T.I.P.?) plan. There is no doubt that Mr. Samsone?s L.T.I.P. benefits would have been terminated after the initial two-year period ending in February of 2008 because his only restriction was an inability to work as a CO in a custodial setting. The insurer advised the Ministry of this sole restriction in a letter dated June 28, 2007. [3] The Employer provided Mr. Samsone with an opportunity to return to work on a temporary three-month assignment. Commencing on November 20, 2007, Mr. Samsone returned to work on a full-time basis as an Electronic Supervision Resource Officer (?ESRO?) through an assignment with the Electronic Supervision Program. Mr. Samsone maintained his 3 classification and CO wage rate during the assignment. Counsel for the Union indicated that an issue about whether this was a temporary assignment was not before me at this time. [4] Mr. Samsone accepted another temporary full-time assignment as an ESRO that commenced on February 25, 2008. He continued to be paid at his CO rate and he worked from the Durham East Probation and Parole Office location. This temporary assignment was to last for up to six months. In a letter dated August 19, 2008, the Ministry advised Mr. Samsone that his temporary assignment would be concluding on October 3, 2008, and that it was expected that he would report to the Superintendent at the Toronto East Detention Centre on Monday, October 6, 2008. [5] During the summer of 2008, Mr. Samsone again went off work under the Short Term Sickness Plan due to the PTSD. He was still off work at the time of the hearing. His status remains as a CO with a home position at the Toronto East Detention Centre. During the time that Mr. Samsone was employed on the temporary assignments and prior to the filing of the grievance, the provisions of Article 20B were not made available to him. [6] Articles 42.10 and 42.11(b) provide as follows: 42.10 When an employee who has been receiving or was eligible to receive L.T.I.P. benefits is able to return to full-time employment, the provisions of Article 20A or Article 20B (Employment Stability), shall apply. 42.11(b) Effective January 1, 2006: An employee who is assigned, under Article 42.10, to a vacancy in accordance with Articles 20B.3.1 or 20B.3.2 of Article 20B (Employment Stability) shall, for a period of six (6) months, be paid at the same step he or she had obtained in the salary range of the classification of the position he or she accepted prior to disability. At the end of that period he or she shall be paid at the rate within the salary range of the classification of the position to which he or she has been assigned. 4 [7] As its heading indicates, Article 20 is an employment stability provision. It is a lengthy and detailed provision that provides various entitlements, including redeployment and displacement rights, to an employee who has received a surplus notice, or, in other words, a lay- off notice. The opening sentence of the provision indicates that the terms of Article 20B apply to an employee ?who is identified as being surplus pursuant to Article 20B.1.2.1 on or after January 1, 2006. The timing for the application of the Article 20B entitlements is based on when an employee receives the surplus notice. [8] The Employer has not issued a surplus notice to Mr. Samone. However, the Union takes the position that the effect of Article 42.10 is that he is entitled to the benefit of Article 20, as if he had received a surplus notice. Referring to the words of Article 42.10 and Mr. Samone?s circumstances, counsel for the Union indicated that Mr. Samone ?has been receiving ?L.T.I.P. benefits? and that he ?is able to return to full-time employment?. Counsel submitted that having satisfied these conditions, Article 42.10 stipulates that the provisions of Article 20B shall apply to a person in Mr. Samsone?s circumstances. The essence of the Union?s position is that an employee who was receiving or was eligible to receive L.T.I.P. benefits and who is able to return to full-time employment is entitled to the benefit of the employment stability provisions even though the employee is not subject to lay off. [9] The parties recognize that the Employer has a duty to accommodate Mr. Samone to the point of undue hardship because of his disability. Counsel for the Union submitted that by agreeing to provide employees who are returning to full-time work after being on L.T.I.P. with access to the code of entitlements under Article 20, the parties intended to create greater certainty about how such employees are to be treated. Counsel argued that, in effect, the parties have 5 agreed to treat an employee in Mr. Samsone?s position as if he has been surplused from his job. Counsel referred me to Ontario Public Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (McGuffin Grievance), [2004] O.G.S.B.A. No. 77 (Herlich). [10] The Employer takes the position that Article 42.10 does not provide a person in Mr. Samone?s circumstances with access to entitlements under Article 20. The Employer claims that those entitlements are available only to an employee who has received a surplus notice. It is unnecessary to review the thoughtful submissions made by counsel in support of the Employer?s position. I note that counsel relied on Re OPSEU (Grant) and Ministry of Finance (2005), GSB #2002-2394 (Dissanayake) in support of an estoppel argument. [11] After considering the relevant Collective Agreement provisions and the submissions of counsel, it is my conclusion that the interpretation of Article 42.10 advanced by the Union cannot prevail. As noted previously, the employment stability provisions provide benefits to employees who are about to lose their job by virtue of a lay-off. In my view, the parties would have employed different and clearer language if they had intended that these provisions would be available to an employee returning to full-time employment after having been on L.T.I.P. [12] The language of Article 42.10 indicates that it is no more than a timing provision. The key words in the Article are as follows: ?When an employee who has been receiving or was eligible to receive L.T.I.P. benefits is able to return to full-time employment, the provisions of Article 20A or Article 20B (Employment Stability), shall apply? (emphasis added). The purpose of the provision is to indicate when the employment stability provisions are to apply. When they apply, one has to assume that all of the provisions of Article 20B would apply, including the one 6 that provides that Article 20B applies to employees who have received a surplus notice. I do not read Article 42.10 to mean that the provisions of Article 20B shall apply in the absence of an employee having received a surplus notice. In my view, the effect of Article 42.10 is merely to provide that the Article 20B provisions will not be applied to an employee who has received a surplus notice until the employee is able to return to full-time employment. [13] The wording of the provision which follows Article 42.10 lends support to this interpretation. Article 42.11(b) is a salary preservation provision which deals with what shall occur when an employee is assigned to a vacancy under Article 42.10 ?in accordance with Articles 20B.3.1?? The opening words of Article 20B.3.1 are, ?An employee who has received a notice of lay-off in accordance with this article?? Reading these provisions together suggests that an employee can only be assigned to a vacancy under Article 42.10 in accordance with Article 20B.3.1 if the employee has received a notice of lay-off. This is another indication that the parties did not contemplate that Article 42.10 would have any application to situations where an employee had not received a surplus notice. [14] Consistent with his obligations, counsel for the Union referred me to the McGuffin decision,supra, where the Union unsuccessfully relied on Article 42.10 and 42.11. Although counsel submitted that the decision was not helpful in the instant case, I believe that it does speak to the issue at hand. [15] At issue in the McGuffin case was the implementation of a settlement. Prior to the settlement, the grievor was in receipt of L.I.T.P. benefits. As a result of the settlement, the grievor was placed in a new position and would receive her CO salary for a period of six months as per Article 7.5 of the Collective Agreement. Shortly after the grievor started in her new 7 position, COs received a negotiated increase, but the grievor did not. The Union relied on Article 42.10 and 42.11 in asserting that the grievor was entitled to the negotiated salary increase. Vice-Chair Herlich determined that Article 42.11 was not applicable to the grievor because it dealt with assignments under Article 20, the provisions of which only applied to an employee who received a notice of lay-off. At paragraph 15, he wrote as follows: ?In other words, even had the parties arrived at their current circumstances ? i.e. an employee disabled from performing her former duties returning from LTIP to a different position ? not through a grievance-mediation-settlement route but through the simple unfolding of events, I fail to see the applicability of Article 42.11?? The circumstances described by Vice-Chair Herlich as occurring through a simple unfolding of events are what in effect occurred to Mr. Samone. Unable to return to his CO position because of a disability, he returned to a different position after being on LTIP. I agree with the conclusion of Vice-Chair Herlich that the provisions of Articles 42.10 and 42.11 are not applicable to an employee in such circumstances. [16] In summary, Article 42.10 does not permit Mr. Samone to access the employment stability benefits contained in Article 20B, given the circumstances of this case. Accordingly, Mr. Samone?s grievance dated February 25, 2008, is dismissed. th Dated at Toronto this 7 day of January 2009. Ken Petryshen, Vice-Chair