Loading...
HomeMy WebLinkAbout1982-0021.Walker.82-08-25. G,-- . 21/82 IN THE hjATTER OF FAN ARBITRATION Under. THE CROWN EMPLOYEES COLLECTIVE BARdAiNlNC ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Jim Walker) and The Crown in Right of Ontario (Ministry of Correctional Services) Crievor Employer Before: J.F.W. Weatherill Chairman E. H. Weisbach Member H. Roberts ,Member For the Crievor: ‘R. Nabi Grievance/Classification Officer t Ontario Public Service Employees Union For the Employer: P. Mooney Staff Relations Officer Civil Service Commission’ Hearing: July 7, 1982 In this grievance, dated December 3, 1981, the grievor alleges that the employer is in violation of article 46.9 of the collective agreement between the parties. That ,article provides.for pre-retirement leave with pay, in certain circumstances. There is no dispute as to the facts, which were set out by the~parties in a joint statement. Those facts are as follows: 1. 2. 3. 4. 5. 6. I. 8. The grievor was at all material times an employee of the Ministry of Correctional Services and, an employee within the meaning of the Collective Agreement. The grievor.was a Probation Officer II at the time of the filing of the grievance. The grievance was filed in a timely fashion and proceeded properly through the stages . of the grlevance'procedure. The GSB has jurisdiction and authority to. hear and determinethis grievance subject to the proviso in Article 27.12 of the Collec- tive Agreement. There are no preliminary objections. The grievor has been continuously employed by the employer since October 1, 1956. He completed 25 years of continuous service.on September 30, 1981, for which he received 5 days vacation in accordance w,ith Art. 4.6.8. The grievor terminated employment with the employer by retiring. The griever's date of birth is February 15, " 1917. He attained the age of 65 years on February 15, 1982. '-3- 9. The grievor's mandatory retirement date'was February 28, 1982. 10. The'employer's documentation shows that the grievor retired on January 15, 1982. 11. The grievor requested pre-retirement leave in accordance with Article 46.9, on or about- December 1, 1981. 12. Atall material times-the grievor earned vacation credits at the rate of 2-l/12 days per month pursuant to Article~46.1.2(~) of the Collective'Agreement. Article 46.9 of the collective Agreement is as follows: 46.9 An employee who has completedtwenty-five (25) or more years of continuous service is entitled, to receive, in the year ending with the end of month in which he attains the age of sixty-five (65) years, pre-retirement leave with pay equal to the difference between thirty (30) days and the number of days of his vacation leave-of- absence earned in that year asset out in sections 46.1 to 46.8. Where the employee who hascompletedtwenty-five (25) or more years of service is absent from duty on leave-of-absence withoutpay in that year; he is entitled to pre- retirement leave with pay,equal to the difference between thirty (30) days and the number of days of vacation leave-of-absence that he would have earned in that year if he had not been absent from duty on leave-of-absence without pay. Clearly, the grievor is an employee who had completed twenty-five or more years of continuous service, at the material times. He was therefore entitled to receive pre-retirement leave with pay, pursuant to article 46.9 of the collective agreement. He was entitled to receive such leave with pay in the year ending with, the end of the month in which he attained the age ,of sixty-five years. The grievor attained the age of sixty-five years - a..- in February, 1982. The year ending with the end ~of that month was the twelve-month period from March 1, 1981, to February 28, 1982. A "year" as here used, is not the calendar year, but a twelve-month period ending on a .- determinable date. Only in'cases of persons with birthdays in December would that period coincide with ~the calendar year. The pre-retirement leave to which the 'grievor was , entitled (in the period from March 1, 1981, to February 28, 1982) was, as art~icle 46.9 then specifies, leave with pay equal to the difference .between thirty days and the number of days of his vacation leave of absence earned in that year, as set out in articles 46.1 to 46.8. "That year" is clearly a reference to the yearfor which the calculation is to be made. In the instant case, that year was the twelve-month-period from March 1, 1981 to February 28, 1982. The amount of vacation leave of absence earned by the'grievor in that year is calculated, as article46.9 indicates, by reference to articles 46.1 to 46.8. By article 46.1.2(c), the grievor earned vacation credits, at the material times, at the rate of 2-l/12 days per month. It would appear that he was entitled to have such rate appliedfor the full twelve months, pursuant to article 46.2. Thus, in the year in question, the grievor earned twenty-five days of vacation leave of absence in accordance with those provisions. In addition, by virute of article 46.8, there was added to the grievor's accumulated vacation, entitlement five days of vacation. That special provision applies only to the one occasion on which an employee completes twenty-five years of continuous service. In the grievor's case, that event .. occurred on September 30, 1981. He was credited with the fiv,e days' vaaation entitlement provided for by article 46.8. Thus, the g~rievor was credited with ,a total of thirty days' vacation leave of absence for the year in. question. All of that leave constituted an earned benefit. Clearly; -under article 4'6.9, the total of pre-retirement cleave credits and vacation leave credits cannot exceed thirty. That is the effect of the formula set out. In the instant case, because of the substantial vacation leave to which.the grievor was entitled, and because, during the year in question, he became entitled to five extra days of vacation pursuant to article 46.8, that maximum was reached. The grievor was entitled to.the benefit of article 46.9, but because of the other leave- with-pay credits to which he was entitled under ar~ticles ,461.l to 46.8 (the intervening articles not referred to are not material to the issue before us), thisdid not .result in any improvement of his position. - -6- It cannot be said that this interpretation of'article ~46.9, which .in our view gives its words their clear and ordinary meaning, renders it nugatory, or that the benefit thereby provided .is. illusory,. It would appear that the article is of less value. to.the more senior than to junior employees, and where, as here, in the case of a senior employee the one-time special credit for com- pletion of twenty-five years' service applies there is no practical benefi t. ~That is, however, then clear effect of the parties' agreement. For the foregoing reasons, the grievance must be dismissed. DATED at Toronto this 25th day of August, 1982. 1,~ . . "I concur" (see addendum) E.H. Weisbach Member Ii. Roberts Member -7- ADDENDUM After reading and considering the decision of the Board in the above grievance, I must, very reluctantly, agree, with the findings of the Board. The wording of article 46.9 is, to the layman, a rather complicated one and in m) opinion is open to different interpretations. .I agree with the ‘findings of the Board that, while the article has certain advantages, it also has certain disadvantages in particular for senior empioyees. Therefore, I found myself in the. position that I have to, although reluctantly, agree with the findings of the Board. However, I wanted to make my feelings known, through this addendum. August 7,1982 H. Weisbach Member