GSB #0912/98
OPSEU#98C376
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Witherow)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Labour)
Employer
BEFORE Bram Herlich Vice Chair
FOR THE Allison Kabayama-Hun
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE John Smith
EMPLOYER Counsel, Legal Services Branch
Management Board Secretariat
HEARING November 21, 2000.
AWARD
The hearing before me in this matter proceeded on the basis of the following agreed facts:
Mr. Joseph Witherow was hired on April 16, 1974 and has served as a Construction Health & Safety Officer with the Ministry of Labour.
Mr. Brian Lemire is the Manager, Windsor District and supervisor to the grievor.
On May 27, 1997 a discussion took place between Mr. Witherow and Mr. Lemire regarding a requirement that Mr. Witherow use a government vehicle for the purposes of carrying out his duties.
Mr. Witherow responded to Mr. Lemire’s instruction with a memorandum which outlined the reasons for his request to be exempted from driving a government vehicle.
On May 29, 1997 Mr. Lemire issued a memorandum to Mr. Witherow to confirm the expected use of the government vehicle effective June 16, 1997.
Based on subsequent discussion(s) between Mr. Witherow and Mr. Lemire, Mr. Witherow understood that if he gave notice of his intent to retire, he would be permitted to drive his own vehicle.
Mr. Witherow submitted a letter dated July 16, 1997 of his intent to retire effective January 30, 1998. Mr. Witherow’s actual last day at work would be November 14, 1997 due to the use of accumulated vacation credits.
On October 30, 1997 Mr. Witherow suffered a workplace injury and received medical treatment by a WCB physician.
Mr. Witherow had obtained approval from his treating physician to return to work effective February 2, 1998. The medical certificate specified “ideally modified work i.e. sedentary work”.
Mr. Witherow rescinded his intent to retire by letter dated January 13, 1998.
On January 28, 1998 Mr. Witherow received a letter dated January 27, 1998 from Mr. Lemire declining his request to have his resignation notice rescinded. Mr. Witherow was advised to ensure that all retirement paper work was completed with Diane Knight.
On February 2, 1998 Mr. Witherow met with Diane Knight to sign his pension paperwork. Mr. Witherow felt compelled to do so since he was not receiving any pay or WCB benefits at that time.
In March 1998 Mr. Witherow received a letter from WCB informing him that his claim had been approved for the period October 30 to November 9, 1997, only.
Mr. Witherow received a pay cheque dated February 5, 1998 in the net amount of $491.28.
Mr. Witherow did not receive any further pay cheques subsequent to February 5, 1998.
On April 10, 1998, Mr. Witherow sent a memorandum to Mr. Lemire advising that he wished to have his pay supplemented by the vacation credits lost during his period of absence due to the work related injury. Mr. Witherow requested that those credits be used to supplement his WCB pay and that he be paid the remaining 27.5 vacation credits in full.
On April 27, 1998, a grievance was filed by Mr. Witherow essentially alleging that the employer unreasonably denied his request to rescind his letter of intent to retire, thereby denying him continued benefits, the use of his vacation credits, and the improper deduction of such vacation credits from his last pay cheque. Mr. Witherow sought reinstatement to his former position retroactive to January 30, 1998 and reimbursement for all loss of salary, benefits and vacation credits plus interest.
A Stage 2 meeting was held on October 5, 1998. Mr. Witherow and his union representative, Elaine Ellis, argued that Mr. Witherow had been dismissed without cause and Section 19 of the Public Service Act was relied upon. It was noted that Mr. Witherow’s position had not been filled at the time that he sought to rescind his resignation.
The Stage 2 response was issued on October 26, 1998, denying Mr. Witherow’s grievance and stating that the Employer determined that Mr. Witherow retired voluntarily and had not been dismissed from his employment.
Mr. Witherow’s grievance was scheduled for a mediation process September 13-15, 1999. However, preliminary discussions revealed that no offer of settlement would be extended and the grievance was not resolved.
Prior to and during the course of their legal argument (no oral evidence was called), the parties supplemented and clarified the above facts.
First of all and despite the references in paragraph 6 of the above facts, it was acknowledged that the grievor’s decision to tender his resignation had been entirely voluntary. Similarly, the events of February 2, 1998 (see paragraph 12 of the Facts) are pointed to in order to demonstrate that, even at that late date, the grievor’s continuing intention and desire was to rescind his resignation. It is not, however, claimed that the grievor did not tender a legally binding resignation—it is acknowledged that he did. The issue is whether he ought to have been permitted to rescind that resignation. Finally, it was not disputed that the decision to deny the grievor’s request to rescind his resignation (see paragraph 11 of the Facts) was one made with the proper delegated authority of the Deputy Minister.
The decision of this Board in Rao (1542/85, 1543/85, 1544/85- Vice-Chairperson Fisher) considered and rejected a similar claim. In that case the grievor sought to rescind the resignation she had tendered less than a week earlier. The decision turns on the provision of section 19 of the Public Service Act. It currently reads as follows (changes to the version considered in the Rao case are not material for our purposes):
- A person may resign from the public service by giving his or her deputy minister two weeks notice in writing of the intention to resign, but he or she may, by an appropriate notice in writing and with the approval of his or her deputy minister, withdraw the notice at any time before its effective date if no person has been appointed or selected for appointment to the position that will become vacant by reason of the resignation.
[emphasis added]
In the Rao case, as in the present one, all of the requirements of section 19 appear to have been met except for the granting of approval by the Deputy Minister. The employer in the Rao case asserted that, absent any relevant provision of the collective agreement or the Crown Employees Collective Bargaining Act, the Grievance Settlement Board had no authority to review the decision of the Deputy Minister to withhold approval of the rescission of the resignation.
The union argued (again, in Rao) that section 19 effectively makes all resignations conditional on not being revoked prior to the effective date. It relied as well on its assertion that an earlier decision dealing with the matter had not found that the grievor had submitted a legally binding resignation to argue that the case therefore amounted to a dismissal which could be the subject of a grievance.
In dismissing the union’s claim the Board concluded that there is, in effect, little difference between the section 19 procedure and that which would obtain in the private (unionized or non-unionized) sector. The decision as to whether or not to accept a withdrawal of a resignation was described as “strictly a Management function, not open to arbitral review unless the Collective Agreement clearly provides for it”.
While there are some differences between this case and the facts considered in Rao, none of them points to a different result. The managements rights and the just cause provisions are now found in the collective agreement—at the time of the Rao decision they were found in the Crown Employees Collective Bargaining Act. However, there is nothing in those provisions, as they existed either then or currently which applies to the facts at hand. The union acknowledges that the grievor voluntarily submitted a legally binding resignation – thus the somewhat artificial construct of characterization as a dismissal is not even available in this case (an approach which, in any event, failed to impress the Board in the Rao case). Finally, the union concedes that that there is no provision in the collective agreement which it can claim has been violated in this case.
While the grievor’s disappointment at the employer’s refusal to grant a request which it might have been in a position to accommodate is not difficult to comprehend, in the absence of any claimed violation of the collective agreement or any other source of mandated jurisdiction, this Board is unable, to use the words of the Rao decision, to “simply correct perceived injustices”.
We were provided with no legal basis to depart from the Board’s analysis in Rao and therefore decline to do so.
The grievance is dismissed.
Dated at Toronto, this 4th day of December, 2000.