GSB# 2002-2502, 2002-3196

UNION# 2003-0736-0001, 2003-0736-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Garrow)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Consumer and Business Services)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Jim Gilbert Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Yasmeena Mohamed Senior Counsel Management Board Secretariat

HEARING

July 11, 2003; January 7, June 4 & 22, July 20, August 11, 2004.

Decision

The grievor began working for the Northwest Regional Centre in 1980 and, in 1991 when it was closed, was assigned to the Office of the Registrar General as an OAG 8 until her termination in 2003. This award deals with the preliminary question of whether the grievor could retire during the investigation into the circumstances of her termination and continue to be eligible for the retiring allowances under the collective agreement. Put another way, can the Employer refuse to accept her request for retirement and, if so, under what conditions.

The Union took the position that there is no limitation on an individual’s right to retire in either the collective agreement or the Public Service Act and the Employer cannot refuse to accept a request for retirement. In the alternative, even if the Employer is right and the Public Service Act does require notice, the notice of termination was received after the two week notice period in the Act and is therefore invalid. The Employer took the position that there is no difference between a resignation and a retirement and the GSB case law has determined that a Vice-Chair has no jurisdiction over resignations under the Act. As well, the Employer retains a discretionary power under the common law to reject a resignation, which does not give rise to a violation of the collective agreement. If this Board does decided it has jurisdiction over this matter, that jurisdiction would be limited to a finding of whether the Employer exercised its discretion unreasonably or in bad faith

Section 19 of the Public Service Act reads as follows:

A person may resign from the public service by giving his or her deputy minister twp 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 tis effective date if no person had been appointed or selected for appointment to the position that will become vacant by reason of the resignation.

The facts giving rise to this preliminary issue are as follows: the grievor was removed from the workplace on December 20, 2002 and charged with theft of Ministry documents, among other things. She appeared in court the next day and was released on condition that she appear for her court date on February 7, 2003, that she keep the peace, that she stay away from the workplace, that she advise the police within 24 hours of any change in address and that she report to the police station every Tuesday between 0800 and 2000 hours.

The grievor was sent a letter dated December 10, 2002 to her address on file, that is 184 Court Street South, Apartment 2, which stated as follows:

This letter is to inform you that pursuant to Section 22 (1) of the Public Service Act you are suspended from duty pending an investigation. This suspension is with pay and is effective immediately.

You will be contacted by mail with further instructions within 20 working days. If you have any questions on this matter, please contact Kelly McDevitt, Assistant Deputy Registrar General (A) at 807-343-7557.

Judi Hartmen

Director/Deputy Registrar General

The letter itself states that it was delivered by registered mail but Ms. Snider, the Union

Steward, was told by Mr. Graham Clark, that the letter was being delivered by the Sheriff to the address shown. In fact, the letter was hand delivered to the grievor by someone who identified himself as the Sheriff on December 12, 2002 at the griever’s new address of 216 Bay Street, Apartment 1, where she had been residing since August of 2002.

By letter dated December 24, 2002, the grievor was advised that new information had resulted in a decision to convert her suspension with pay to a suspension without pay pursuant to Section 22(1) of the Public Service Act. The grievor received a card in the mail advising her that a parcel had been received for her at the Post Office in Shopper’s Drug Mart. She was unsure of the date of the notice but recalled collecting the letter the next day and calling Ms. Snider immediately. She was concerned about the lack of revenue since her rent was already past due and she had no other source of income. She had been told she was ineligible for EI and that there would be a three month wait for welfare benefits. In fact, she had received an eviction notice from the Sheriff’s office and had moved on February 6, 2003 to 220 Bay Street, Apartment 4. She and a friend managed to move all of her belongings in just a few hours.

In the meantime, the grievor had received another letter by registered mail advising her that her 20 day suspension without pay was being extended for another 20 days, until February 17, 2003. The letter was addressed to her old address of 216 Bay Street but she received the mail at her Post Office box at Shopper’s Drug Mart. At the time she was still reporting to the police station every Tuesday and a friend had been driving her to that appointment and to the post office at the same time.

Because of concerns about her finances, she wrote a letter dated January 29, 2003, which stated as follows:

Please consider this letter my official notification to retire from my position at the Office of the Registrar General effective immediately. Please forward the appropriate papers.

She knew she could retire at full pension without financial penalty and decided she had no alternative. She described herself as being bereft of funds. Ms. Snider helped her to draft the letter and the grievor asked her to deliver it to the Employer since she was unable to attend at the premises herself. She still considered herself suspended from duty and believed that suspension would continue until the criminal proceedings had concluded.

She was surprised then to receive the letter of dismissal dated February 4, 2003, in which she was advised that the Employer had rejected her request for retirement and that, effective immediately, she was dismissed from employment. At the time the grievor was receiving her mail at her post office box at Shopper’s Drug Mart and, because, she had no transportation, would only pick it up once a week on Tuesday, after her visit to the police station. Her evidence was that she would have picked up this letter on either February 18^th or 25^th on one of her regular pick-ups. The return address on the envelope was the Toronto office of the Ministry and the date stamp from the post office was 03/02/11.

In cross-examination she explained that she had moved in August of 2000 from 184 Bay Street to 216 Bay Street and before that she had lived on Cumberland Avenue. She could not recall whether she had informed the Employer of these moves. She also stated that in November of 2002 she had rented a post office box because she was having trouble with her mail delivery. Some of the mail she had been expecting was never delivered and she suspected it was because of her landlord, who was responsible for sorting the mail at her apartment. She was unable to recall whether she had advised Ms. Snider of her change of address on February 6^th or whether she had informed her of her post office box number at Shopper’s. She was very vague about when, if ever, she told the Employer or the Union about her move to 220 Bay Street or her rental box at Shopper’s or many other details of the events that occurred at the time. She did not recall any communication with Purolator but explained that her apartment was in a building that contained a small electrical shop on the main floor. In order to leave a notice the deliverer would have to ask for entry to the apartments above. Only people living in the apartments have access to them. If the owner of the shop was absent, there would be no one to accept a letter. The tenants in the apartments above would not be aware of any delivery except through the shop below.

Ms. Snider is employed by the Office of the Registrar General in the same classification as the grievor. She has known the grievor since they were employed by the Northwest Regional Centre in 1993. She has also been an active Union member for several years and was the Union Steward during the events giving rise to this grievance. She was aware that the grievor had been escorted from the building on December 10^th and that she had been suspended with pay pending investigation. She received a phone call from the grievor between Christmas and New Year’s advising her that the suspension was now without pay. On January 3, 2003 she filed a grievance on the griever’s behalf and requested disclosure of the facts leading to the suspension. A grievance meeting was scheduled for January 30^th but in the interval the griever’s suspension without pay was extended for another 20 days. During this time the grievor and Ms. Snider spoke frequently. The grievor was in serious financial difficulty and needed money to purchase prescription medication. Ms. Snider advised her to seek welfare or EI benefits, and during these discussions, her eligibility for pension benefits was raised. She was afraid she was going to be evicted from her apartment and had an ongoing need for medication. Ms. Snider wrote the letter seeking retirement and met with the grievor over lunch to have her sign it. Ms. Snider then handed the letter to Ms. McDevitt, the Acting Deputy Registrar General, who accepted it without comment. Ms. Snider helped the grievor complete the necessary application forms for the pension and, when she had some difficulty, asked Ms. McDevitt for her assistance. On February 5, 2003 she sent an e-mail asking Ms. McDevitt whether the forms had been submitted and received a reply that same day indicating they had been “sent on”.

Ms. Snider was not aware that the grievor had been terminated or that her application for retirement had been rejected until Ms. Pilley, the OPSEU Staff Representative, told her they had received a copy of a letter at the OPSEU office on February 13, 2003 advising the grievor of her dismissal. A grievance meeting was scheduled for February 26th but Ms. Snider entered the wrong date in her calendar and, as a result, the grievor was not present for the conference call.

Ms. Snyder had advised Mr. Paul Moore, Manage of Human Resources, by e-mail, about the grievor’s new address and post office box number on February 10. In response the next day, Mr. Moore advised Ms. Snider that a letter had been sent to the grievor’s old address but that another would be sent to the new address. Ms. Snider advised Mr. Moore by e-mail the next day, that is February 12, that the grievor had been staying with a friend and that she would be more likely to receive mail at her post office box. She was not told the contents of the letter. Ms. Jan Pilley has been employed by the Union as a Staff Representative since April of 1993. Her duties include representing members at grievance meetings and advising them of their rights and obligations under the collective agreement. She also acts as a resource for local union stewards on labour relations matters. She was present for the January 30^th Stage 2 grievance meeting regarding the griever’s suspension. Ms. Pilley understood that the purpose of the meeting was to allow the grievor an opportunity to explain her version of the events. However, on the advice of her legal counsel on the criminal matters, she did not attend the meeting. During the meeting the Union was advised by Mr. Moore that he was still investigating the matter and could not respond at that time. Ms. Pilley advised him that, as far as the Union was concerned, the matter was moot since the grievor had retired from the public service. There was no response to that comment. The meeting ended on that note and Ms. Pilley’s next involvement in the case arose on February 13^th when she received a copy of the termination letter at the OPSEU office. The letter was dated February 4 but was date stamped as received on February 13, 2003. She was leaving the next day for Niagara Falls and decided to file the grievance on behalf of the grievor to ensure her rights were protected. She did not see the need to speak to the grievor before filing the grievance because, if the grievor did not want to proceed, they could withdraw the grievance at a later date. The first time she became aware that the Employer had rejected the grievor’s application for retirement was during the Stage 2 conference call concerning the termination grievance.

Mr. Moore has been a member of the OPS since 1985, first with the Ministry of Correctional Services in the Toronto Jail until 1998 when he became a Labour Relations Consultant with the Ministry of Consumer and Business Services. Presently he is the Manager of the Human Resource Services Delivery Unit. He became involved in this matter on December 10^th through a telephone call from Ms. McDevitt She explained that she had been contacted by the police about the allegations against the grievor and he advised her to suspend the grievor with pay, to investigate the allegations and to cooperate with the police. Later in that month the grounds for the allegations were clarified and the decision was made to renew the suspension for another 20 days, this time without pay. By this time the grievor had filed a grievance alleging unjust suspension. A conference call was scheduled for January 22^nd as a Stage 2 meeting. The grievor did not attend that meeting and the grievance was denied.

Mr. Moore helped draft a letter dated January 20, 2003 that set out the specifics of the charges against her and advising her that a meeting had been scheduled for January 30^th and that, since disciplinary action might ensue, she was entitled to a Union representative. After this Stage 2 conference call, Mr. Moore consulted with Ms. Hartmen and Ms. McDevitt and the decision was made to terminate the grievor’s services. In the interval Ms. McDevitt had received the griever’s application for retirement. Mr. Moore drafted a letter dated February 4, 2003 in which he rejected her resignation and advised her that she had been terminated for cause. Mr. Moore sent the letter to the last address on file. He subsequently received an e-mail from Ms. Snider advising him that the grievor had a new address and providing him with the post office box number. He forwarded that new address to Ms. Noreen Layog, secretary to Ms. Hartmen. When Ms. Layog received the e-mail from Mr. Moore, she advised him that she had already sent the termination letter to the grievor’s old address the day before by courier. Mr. Moore responded that same day, that is February 11^th, by asking Ms. Layog to send a copy of the letter to the new address but, because it was a post office box, to send it by regular mail. The next day Mr. Moore provided Ms. Layog with another address, namely 220 Bay Street, Apartment 4. Because he had concerns about the delivery of this notice, he asked Ms. Layog to document the steps taken to deliver this letter. Ms. Layog prepared a schedule of her efforts which showed that she had originally sent a courier package to the grievor on February 10^th at 216 Bay Street, then sent it to her post office box the next day, which was returned by the courier, and resent by courier on February 12^th to the griever’s new address at 220 Bay Street. On February 17^th Ms. Layog received a call from the courier in Thunder Bay advising her that the grievor had not been home when the parcel was delivered and that a note had been left asking her to pick up the package at the courier’s office. The grievor had not contacted them and the courier was asking for a telephone number to contact her directly. Ms. Layog advised the courier that there was no phone number on file and the package was returned to Ms. Layog on February 19^th. In the meantime Mr. Moore had been made aware that a grievance had been filed about the termination and assumed that the grievor had received notice of the Employer’s intentions.

A letter dated March 13, 2003, signed by Mr. Moore, referred to a Stage 2 telephone meeting of February 26^th denying the grievance and taking the position that the grievor had been terminated for cause during the legislated notice period under Section 19 of the Public Service Act.

SUBMISSIONS OF THE PARTIES

Mr. Gilbert, representative for the Union, took the position that the grievor had retired from her employment with the Ministry and is entitled to the all the retiring allowances under the collective agreement. Retirement is not a resignation and the Public Service Act has no bearing on the griever’s right to retire in accordance with the pension provisions of the collective agreement and the applicable statutory regulations.

On January 29, 2003, while the grievor was on a third twenty day suspension, she applied for her pension benefits, effective immediately. She had no other source of income and was forced to resort to her pension in order to survive. The letter was handed to Ms. McDevitt, who accepted it without comment. A meeting was held the next day and no reference was made to the application for retirement and there was no suggestion that the Employer intended to reject that application. In fact, on February 5^th, the day after the termination letter had been drafted,Ms. McDevitt told Ms. Snider that the pension papers for the grievor had been forwarded without any mention of a rejection or denial. It was reasonable for the grievor and the Union to conclude that her request for retirement had been accepted and was in the process of being completed.

During this time the grievor was forced to move because of financial problems but at no time did she try to hide her whereabouts. She kept the Union informed of her current address and, because of her bail conditions, advised the sheriff’s office of her address within 24 hours of any move. The Union, when asked, provided the Employer with the most current address in its files. The grievor did not avoid service of the notice of termination. Her evidence is that she received it on either February 18^th or 25^th because those were the only days she went to the post office box to collect her mail.

The Union submitted that the griever’s application for retirement cannot be denied and she is therefore entitled to all retiring allowances under the collective agreement. In the alternative, if she was required to give notice under the Public Service Act, the Employer’s rejection of her request to retire was given after the 2 week notice period and therefore was invalid.

The Public Service Act deals with resignations. It was said there is no penalty for non-compliance and the time limits are directory, not mandatory. A failure to adhere to the notice period has no consequences and cannot deprive an employee of vested rights under the collective agreement without clear language to that effect. The purpose of the notice under the Act is to allow an employee a cooling off period to reconsider his/her decision. It also gives the Employer an opportunity to replace that resigning employee during the notice period. None of those factors apply in this case. The grievor had been away for sixty days during her suspensions and there was no issue of replacing her for the two week notice period. There was no question of a cooling off period within which she could or would reconsider her decision. In any event, it was argued, section 19 does not give the Employer the right to reject the request for retirement. It gives the employee the right to reconsider. If the Employer intended to rely on this legislated right, it should have told the grievor and the Union of its intention as soon as it received the letter of retirement.

The Union was seeking a declaration that the grievor had been improperly terminated, an order that all references to a termination be removed from her file, an amendment to her file to reflect her retirement from employment and payment, with interest, of all retiring and severance allowances due to her under the collective agreement. It also asked that the Board remain seized in the event the parties encounter difficulty in implementing this award.

In support of its position the Union relied on the following case: Re Greater Essex County District School Board and Elementary Teachers’ Federation of Ontario (Olgan Grievance) [1999] O.L.A.A. No. 635 (Swan); Re United Electrical Workers, Local 514, and SCM (Canada) Ltd. (1964 CanLII 962 (ON LA), 15 L.A.C. 332 (Reville); Re Capital Records - EMI of Canada Ltd. v. Gosewich et al (1977), 17 O.R. (2d) 510 (High Court of Justice). Re International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 303 and Frigidaire Products of Canada Ltd. Leaside (1953), 5 L.A.C. 1601 (Cross);Re Canada Post and Canadian Union of Postal Workers (Grantmeyer) (1991), 1991 CanLII 13362 (CA LA), 21 L.A.C. (4^th) 59 (Jolliffe) and Re OPSEU (Muir) and Ministry of Labour (1994), GSB # 3166/92 (Gray).

Ms. Mohamed, counsel for the Employer, took the position that there is no legal distinction between retirement and resignation. The questions for this Board to answer are whether the grievor complied with the requirements of the Public Service Act and, if she did not, whether the Employer has the right to reject her request to retire in the circumstances. If the Board accepts the Union’s position that the time limits in the Act are directory, was the delay in notifying the grievor of her termination reasonable in the circumstances.

It was said there was no real dispute about the facts, simply the meaning to be given to those facts. The Union representative was present for the January 30^th grievance meeting and must have known what was to follow. There was no obligation on the Employer at that time to advise the Union of its decision. The Employer was entitled to consider what it had learned at the meeting before it made up its mind to discharge the grievor. In fact, that is the purpose of the stage 2 meeting, to consider the grievor’s version of the events before reaching a final decision. The Union filed a grievance challenging the discharge on February 13^th. That grievance was not filed subject to the griever’s consent. The Employer was entitled to accept that grievance of proof of the grievor’s knowledge of the dismissal. The Union has alleged that it did not know the Employer had rejected the application for retirement until February 26^th but the notice of termination was itself notice of the denial of the request for retirement.

The Employer submitted that the request for retirement did not meet the requirements under the Act. The fact that Ms. McDevitt accepted the letter from Ms. Snider cannot be taken as acceptance of the request itself. She merely took the letter to forward it to the appropriate people for consideration.

The letter of termination was forwarded to the address on the letter of resignation. That was the address on file at the time and was the proper address for service. The Employer did not know of an alternative address until February 10^th when Ms. Snider e-mailed Mr. Moore the griever’s post office box number. The grievor failed to keep the Union or the Employer apprised of her current address and the Employer cannot be penalized for having acted on the information provided by the grievor. It was reasonable in the circumstances for him to send the notice of termination to the address provided by the grievor.

Until February 10^th, everyone believed that the griever’s address was 216 Bay Street. When the Employer was advised the letter had not been delivered, it took immediate steps to ensure prompt delivery. It acted reasonable in all respects in the circumstances.

The GSB, it was said, had interpreted section 19 of the Act in Re OPSEU (Witherow) and Ministry of Labour (2000), GSB # 0912/98 (Herlich), which concerned the question of whether the grievor could rescind his letter of intent to retire. He had tendered his request for retirement but later asked to be reinstated to his former position in accordance with section 19 of the Act. Vice-Chair Herlich referred to an earlier award of Vice-Chair Fisher (Rao, 1542/85, 1543/85, 1544/85) which had considered and rejected a similar claim and stated “The decision as to whether or not to accept a withdrawal of a resignation is a management function, not open to arbitral review unless the collective agreement clearly provides for it”. It was submitted that this Board must follow the Rao decision.

In summary, the Employer took the position that there is no difference in law between a resignation and a retirement under the Public Service Act and the Act requires two weeks notice. The grievor did not provide those two weeks notice and the Employer has the discretion to accept or reject her request by statute and by common law.

Even if the Union’s premise is accepted and the two week notice period is directory, the delay in providing notice to the grievor of the denial of her retirement request and termination was not unreasonably delayed and should be found to be valid.

In support of its position, the Employer relied on the following cases: Re Basu and Treasury Board (National Defence) (1990), 17 P.S.S.R.B. Decisions 37 (Digest); Re Ianni and Liquor Control Board of Ontario (1990), GSB # 552/88 (Barrett);Re Oxman v. Dustbane Enterprises Ltd. [1986] O.J. No. 718; Re Streeting v. Canada (Minister of Employment and Immigration) 1988 CanLII 9377 (FC), [1988] 2 F.C. 426; Re Miracle Food Mart and UFCW, Local 175 and 633 (1983), 1983 CanLII 4915 (ON LA), 11 L.A.C. (3d) 320 and Re Nova Scotia Civil Service Commission and Nova Scotia Government Employees Union (1986), 1986 CanLII 6721 (NS LA), 27 L.A.C. (3d) 120 (Outhouse).

REASONS FOR DECISION

The sole question before me in this preliminary matter is whether the Public Service Act gives the Employer the right to reject an application for retirement thereby denying the grievor the retiring allowances otherwise due her under the collective agreement. The facts as set out are clear. The grievor was suspended with pay for 20 days pursuant to the Act. That suspension was extended twice more for total of 40 days without pay, again pursuant to the Act. During that time period, the grievor applied for her pension benefits in accordance with the collective agreement.

I begin by noting that the grievor has the unconditional and absolute right to retire and claim her pension benefits. She qualifies for a full pension without restriction and cannot be denied those benefits. The question before me is not whether she can retire but rather whether her application for her pension became effective before or after her termination and what effect, if any, the timing of her retirement has on other entitlements under the collective agreement.

Dealing first with the question of jurisdiction, the Employer relied on the Rao and Witherow decisions for the proposition that a panel of the GSB has no jurisdiction to consider the exercise of an employer’s discretion under section 19. If those cases did determine that issue, I would be bound by them and would have no alternative but to dismiss the grievance. However, that is not what the cases stand for. In both of those cases the issue was whether the employer’s decision to refuse to accept a request to withdraw a resignation and/or a retirement was open to challenge. The answer in both cases was that the employer’s discretion was a managerial function that was not subject to arbitral review. In the instant case, that is not the issue before me. The grievor is not asking to withdraw her application for retirement. It is the Employer who is relying on the time limits in the Act as grounds for its refusal to accept that request, which is a different matter and, in my view, distinguishes it from the Rao and Witherow decisions.

The Employer took the position that the reference to two weeks notice under the Act is mandatory and a failure to comply with those time limits entitles the Employer to reject that request as invalid. The issue of time limits under a collective agreement has been the subject of much litigation in the past, most commonly concerning the question of whether time limits under a grievance procedure are directory or mandatory. Those cases provide some guidance in determining the interpretation to be given to the time limits in the Act. It has been universally accepted that where a collective agreement provides a penalty for a failure to meet the time limits, those time limits are to be strictly enforced. If there is no express consequence for non-compliance, an arbitrator must look at the agreement as a whole to determine whether the parties intended the time limits to be mandatory, notwithstanding the absence of a penalty.

A review of the Act is not helpful. There are no indications in the Act of the intentions of the parties that would assist me in answering this question. However, in reading section 19 in its entirety, I believe the purpose of the provision is clear. The Employer is entitled to two weeks notice of an employee’s intention to resign so that it will have an opportunity to take steps to replace the employee within the notice period. Indeed, section 19 specifically allows an employee a window within those two weeks to reconsider his/her decision before that replacement has been found. The two week notice period is meant to ease the transition period by allowing the employer time to find that replacement or, at least, take steps to do so. In the instant case, no such considerations apply. The grievor had been off work since early December and the Employer did not need two weeks notice of her departure for replacement purposes. Similarly, there was no need for a cooling off period since there was no question about the grievor’s return.

In the circumstances I am unable to conclude that the two week notice period under the Act is mandatory.

Even if I am wrong and the time limits are mandatory, the Employer failed to reject her application for retirement during the two week notice period. The request for retirement was dated January 29, 2003. The letter of termination was dated February 4th but was not received by the grievor until February 18^th or 25^th, depending on when the grievor retrieved her mail at the post office. While I accept the Employer’s evidence that it took steps to deliver the letter during the two week notice period, the fact is, it did not reach the grievor until February 18^th at the earliest, some twenty days after the request for retirement. There is no evidence that the grievor avoided service. Indeed, her evidence was that she expected the suspensions to continue until the criminal charges had been resolved and had no reason to believe a letter of termination would be forthcoming. She had applied for her pension and assumed her employment with the Ministry had ended. There would have been no reason to avoid service.

The letter seeking retirement was dated January 29, 2003. The Employer received that request on January 29^th, by hand, and I agree with the Employer that the fact Ms. McDevitt took possession of the letter is not proof of acceptance by the Employer of the retirement request. There were several opportunities after that date for the Employer to have put the grievor or the Union on notice that it was considering whether to accept that retirement as a resignation. Despite discussions with the Union about the forms and execution of the necessary documents, neither the Union nor the grievor had any reason to believe there was an issue about her retirement. When the Employer determined that termination was the appropriate action, it sent a letter to the grievor advising her of its decision. Accepting without deciding that the Employer had the authority to reject the grievor’s retirement request, the Act requires that the notification of that rejection must be made within the two week time limit in the Act, which, in this case, would have been February 12, 2003. However, through no fault of the grievor, that letter was not delivered to her until either February 18 or 25, 2003. Even if I were to accept the receipt of the letter at the Union’s office on February 13^th as the date notice was received, it was still outside the two weeks stipulated in the Act. Except for the date on the letter of termination, all of the relevant dates for actual delivery fall outside of the two weeks the Employer relies on as grounds for its refusal to accept her retirement. When it was advised that the old address on file was no longer correct it took steps to effect delivery by regular mail and by courier. None of those efforts were successful and the grievor did not receive the notice until after the two week time frame in the Act.

The Muir case (supra) is of some assistance in the instant case since it deals with some of the same issues. The grievor was on her probationary period when she was given approval for a vacation from December 17, 1992 to January 4, 1993 inclusive. She had begun her employment with the Ministry on December 30, 1991 and received a letter from the Acting Deputy Minister releasing her from employment effective December 31, 1992. On December 16, just prior to her vacation, she had been given a letter advising her that it was unlikely she would be appointed to permanent staff at the conclusion of her probationary period. It was agreed that letter was not notice of her termination. By letter dated December 18, the Acting Deputy Minister advised her of her release from employment effective December 28, 1992, in accordance with section 22(5) of the Public Service Act. The letter was received by the grievor in an envelope post stamped December 24^th, which the Board accepted as the date is had been mailed. It also found that there could be no expectation that a letter mailed on Christmas Eve would be delivered by December 31, the effective date of her release. The grievor returned from her vacation on December 31, 1992 and received the letter that same day via courier. The bill of lading indicated the letter had been given to the courier on December 30, 1992.

Section 22(5) of the Act read as follows:

22(5) A deputy minister may release from employment any public servant during the first year of his employment for failure t meet the requirements of his position.

The Board, at page 4, said the following:

A “release” is a termination of employment. Employment is a contractual relationship which may be brought to an end in a variety of ways. This is not the occasion for an extended discourse on that subject. Suffice it to say that unless it provides otherwise, a contract of employment of indefinite duration will not be brought to an end by the mere desire of the employer to end it if the employee has no notice of that desire.

In that case the employer had not challenged the union’s position that an employee must be given notice of a release in order for it to be effective. The employer argued that notice was given on December 18^th when the letter had been mailed or, in the alternative, a reasonable time after it was mailed. The Board found, at page 6, as follows:

Notice to the grievor was not effective when it was mailed. In our view, it was only effective when received. The result would have not have been different, however, if the rule were that mailed notice was effective within a reasonable time after mailing. A reasonable time would be the time within it would be reasonable to expect that the notice would come to the attention of an addressee who was not avoiding service. As we have already observed, there was no reasonable prospect that a letter tendered to the post office on Thursday, December 24,1992 for delivery by registered mail would reach the grievor before Wednesday, December 30, 1992, the anniversary if her first day of employment.

The Board found the grievor had not been released before the completion of her probationary period and therefore had not been released in accordance with the Act. It stated clearly that notice to the grievor was not effective until it was received. Even if it gave the benefit of the doubt to the employer, it found that the steps taken to deliver the notice fell short of what it determined would have been the reasonable expectations of delivery.

I accept the proposition that notice is only effective when it has been received. There is an obligation on the Employer to ensure an employee receives notice of a termination within any time limits that are applicable. In the Muir case, her probationary period ended on December 30^th. The Employer therefore had to provide notice of its intention to release her during the probationary period, and not the day after, as is what happened in this case. The Board in that case also entertained the suggestion that receipt can be inferred within a reasonable period of time after mailing but that, in the circumstances of the holiday season, there was no reasonable expectation of a timely delivery. In the instant case, the letter was dated February 4, 2003 and was sent by courier on February 10^th to the grievor’s old address. Mr. Moore was advised that same day about the grievor’s new address and instructed Ms. Layog to send the letter by regular mail since he only had a post office box number. The next day, that is February 12^th, another attempt was made to deliver the notice by courier to the 220 Bay Street address. Even if the courier had managed to deliver the letter that day, the effective date of the grievor’s retirement was January 29, 2002, more than two weeks before the letter of termination could have been delivered. Even if one accepts the Union’s receipt as February 13, 2002, that is outside of the time limits relied on by the Employer.

The Employer has urged me to find that, even if it did not communicate its intention to discharge the grievor during the notice period, it took all reasonable steps to deliver that notice and the Board should accept those efforts as sufficient to meet the requirement of the Act. It also took the position that, at common law, it retained the right to discharge the grievor within a reasonable time frame, which could be outside the two weeks in the Act in some circumstances. With respect to the issue of the reasonable steps taken by the Employer, there is no evidence before me of any attempts to deliver the February 4^th letter until February 10^th. Mr. Moore became aware of the problems with delivery on February 10^th when he was told the grievor had a new address. He spoke to Ms. Layog the next day and advised her to send the letter to the mail box number by regular mail. He must have known that the grievor could not receive that letter before the 2 week notice period had expired. Even when he was told on February 12^th of the new address, he left it to Ms. Layog to deliver the letter without any particular instructions about time limits. He, or the Ministry, knew about the terms of her probation and could have taken steps to ascertain her address from the sheriff’s office and could have made arrangements for the sheriff to deliver the letter by hand. In fact, knowing the time constraints, it could have had the letter delivered by hand on the 10^th, 11^th or even the12^th to ensure a timely delivery.

The Employer had asked this Board to apply the terms of the Act strictly and to find that a failure to adhere to those strict terms renders the grievor’s retirement invalid. On the other hand it asked this Board to find that its common law rights allow it to reject a resignation or retirement at any time, subject only to a test of reasonableness. It seems to me that is an untenable proposition. Accepting without deciding that question, if the Act, in its strictest application, can operate to deny employees rights and benefits due to them under the collective agreement, it must be applied in a consistent and fair manner by all parties affected by it.

Many of the cases referred to by the parties have little direct relevance to the instant case. The Greater Essex County Case (supra) dealt with the issue of the payment of a retiring gratuity to an employee who had purported to retire. In fact, the Board found that he did not meet the terms of the pension plan and therefore was only entitled to the commuted value of his pension, not the retirement allowance he had claimed. The case is of limited assistance to the instant case. Similarly, the Canada Post (Grandmeyer), Frigidaire Products, SCM Canada and Ianni cases (supra) dealt with the issue if whether an employee can rescind a resignation and/or whether the employer is obligated to accept that repudiation. For the most part that involves a consideration of the subjective and objective elements of the resignation with a view to assessing the true intentions of the employee. That is not the case in the instant grievance. The grievor intended to retire and never changed her mind.

DECISION

The notice of termination was not delivered within the two week time limit the Employer claims was available to it. Accordingly, even of it had the authority to reject the grievor’s request for retirement and elect to terminate her services, it failed to do so in a timely fashion. The grievance is upheld. I will remain seized in the event the parties have difficulty in implementing this award.

Dated at Toronto this 7^th day of December, 2004.