GSB #0447/00, 1042/00
OPSEU#00U072, 00U130
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union Grievance)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Employer
BEFORE D. J. D. Leighton Vice Chair
FOR THE Richard Blair, Counsel
GRIEVOR Ryder, Wright, Blair & Doyle
Barristers and Solicitors
FOR THE Len Marvy, Senior Counsel
EMPLOYER John Smith, Senior Counsel
Legal Services Branch
Management Board Secretariat
HEARING February 27, 2001. Decision
On November 16, 2000 the Board was asked to interpret section 5.2 of Appendix 18 of the collective agreement between the parties. On February 27, 2001 the parties asked for a further interpretation. Section 5 governs transfers of bargaining unit jobs through the tendering process or the Request for Proposal (RFP). Section 5.2 provides:
Employees who elect not to be included in the RFP will be declared surplus. The date of the surplus notice will be determined by the employer. Upon receipt of the surplus notice, the affected employee will exit the OPS immediately, these employees will receive only the benefits set out below:
(i) pay in lieu of notice in accordance with Article 20.2
and
a) the greater of separation allowance in accordance with Article 20.3
or
b) enhanced severance in accordance with paragraph 4 of Appendix 9
and
ii) termination payments in accordance with Article 53 or 78.
Upon receipt of surplus notice, employees who elect not to be included in the RFP will not be entitled to any other benefits or rights under the collective agreement or this agreement, effective the date they exit the OPS. Notwithstanding the generality of the foregoing, upon receipt of surplus notice, these employees will have no other rights under Article 20, except for Article 20.15 and Article 20.19. Employees electing in advance to not be included in the RFP will also receive a sum equal to $500.00 for the purpose of obtaining resume writing and career transition services.
The parties explicitly limited the entitlements of Article 20 to the payments noted in section 5.2:i) pay in lieu of notice and the greater of a) separation allowances in accordance with Article 20.3 or b) enhanced severance in accordance with paragraph 4 of Appendix 9 and ii) termination payments in accordance with Article 53 or 78.
Section 5.2 explicitly provides that upon electing not to be included in the RFP, employees will be declared surplus and they will exit the OPS immediately. This is in contrast to the entitlement of the employee surplused under Article 20 outside the reasonable efforts provisions. These employees have options when they are surplused. For example, and employee identified as surplus under Article 20.1 is entitled to six months notice of lay-off or with the consent of the employer may resign and receive the equivalent pay in lieu of notice. This entitlement was explicitly removed in section 5.2 of Appendix 18 by the requirement that employees who refuse to be part of the RFP must exit immediately. They get no choice.
The language of section 5.2 provides that except for the payments listed in the section, the exiting employee has no other benefits or rights under the collective agreement. It states more specifically that there will be no other rights under Article 20 “except for Article 20.15 and Article 20.19.” Given this language the decision of the Board on December 6 was that employees were not entitled to apply for restricted competitions for 24 months from the date of lay-off. Likewise the exiting employee has no displacement rights, re-deployement, recall or other Article 20 rights, that would assist the individual in securing another position in the OPS. It was the Union’s position and the Board agreed that pursuant to the language of section 5.2, the employee who rejects the RFP would exit, and would get no assistance to remain in the OPS.
The question before the Board now is whether employees, who have exited under section 5.2 and been paid surplus entitlements, upon returning to a job in the OPS, must repay these monies pursuant to Articles 20.2.4 or 20.2.5.
The Union takes the position that these articles confer a benefit – allowing the employee in effect to “purchase back” their seniority. Further, it is submitted that since the Board has held that only the benefits as specifically outlined in section 5.2 apply, then Articles 20.2.4 and 20.2.5 do not require an employee, surplused under section 5.2 to pay back surplus entitlements if they are able to secure a new position in the OPS. The Union submits that it would not be fair to require employees who return to the OPS to pay severance back but not get their seniority.
The Employer takes the position that Articles 20.2.4 and 20.2.5 are not benefits but obligations to an employee who was paid surplus entitlements to repay according to the requirements of Articles 20.2.4 and 20.2.5. Currently, any employee who secures a position after being surplused outside of Appendix 18, even a position that was not restricted, must pay back surplus entitlements. In the Employer’s submission the provisions are at least neutral – in that the employees are obliged to pay but then they receive their seniority. The Employer did not take the position that employees were required to pay back surplus entitlements but were not entitled to seniority.
Having carefully considered the above submissions, I rendered a decision on March 5, 2001 that declared any employee surplused under section 5.2 who subsequently secures a job in the OPS must comply with Articles 20.2.4 or 20.2.5 as may be applicable.
While it is clear that the parties intended to remove all Article 20 assistance to employees exiting under Appendix 18, there is nothing that prevents the surplused employee from competing for an open position in the OPS. If they are successful and come back to work for the Government Article 20, and indeed, all of the rest of the collective agreement, then applies to them. Under Article 20 employees are obligated to repay monies under Articles 20.2.4 and Articles 20.2.5. Upon paying these monies their continuous service date is recalculated according to these provisions.
Date at Toronto, this 16th day of March, 2001.