GSB# 2001-0929
UNION# 2001-0213-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Pereira)
Union
- and -
The Crown in Right of Ontario (Ministry of Community and Social Services)
Employer
BEFORE
D.J.D. Leighton
Vice-Chair
FOR THE UNION
Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Meredith Brown Counsel Management Board Secretariat
HEARING
June 6, 2005.
Decision
INTRODUCTION
The issue in this case is whether a person who has received benefits under Appendix 18 and has exited the Ontario Public Service (OPS), must make repayments under article 20, when returning to an unclassified position. The union takes the position that article 20 only applies to classified employees. The employer’s position is that it article 20 applies to a classified employee who is surplused, and returns to a position in the OPS.
The grievor, Mr. Hernani Pereira, was part of a group of grievances (GSB 0047/2000 et al) filed by employees of Syl Apps after the institution was divested to Kinark in December 2000. The board has issued a number of decisions in this matter. In a decision rendered on March 21, 2003, the board noted that the union reserved a right to make further specific submissions regarding the grievor. On June 6, 2005, the union exercised that right and a hearing into this matter proceeded by way of an agreed statement of facts and oral argument.
Agreed Statement of Facts
The Grievor was employed as a Youth Worker at the Syl Apps Youth Facility with the Ministry of Community and Social Services. He commenced employment in 1983.
Syl Apps was divested to Kinark as of December 1, 2000.
Prior to the divestment, employees were given the choice to “opt in” or “opt out” of the RFP.
The Grievor opted out and left the OPS on November 30, 2000. By opting out, he elected to receive severance payments under Appendix 18 of the Collective Agreement.
On March 5, 2001, the Grievor took an unclassified position in the Probation and Parole Office with the Ministry of Community Safety and Correctional Services. At the time he took the position, he had not yet received his severance payments.
The amount the Grievor ultimately received was reduced by the amount that he was required to repay pursuant to article 20.2.5.
Total of Enhanced Severance, Legislated Severance and Pay in Lieu = $48,683.35.
Legislated Severance = $13,134.00 (paid to the Grievor).
Pay in Lieu for December 1, 2000 – March 4, 2001 = $11,557.92 (paid to Grievor).
[Remainder at issue = $23,991.43 + interest]
The Grievor continues to work in an unclassified position at the Probation and Parole Office. The combination of unclassified positions he has held since March 5, 2001 has not yet given rise to conversion under the Collective Agreements.
SUBMISSION OF THE PARTIES
The union takes the position that when the grievor opted out and left the OPS on November 30, 2000, he was entitled to receive severance payments pursuant to Appendix 18 of the collective agreement. Because, at the time, litigation in this matter was pending, the grievor did not receive the enhanced payments. When the grievor returned to the OPS to an unclassified position, the employer offset the payments pursuant to article 20.2.5. It is the union’s position that because the grievor returned to an unclassified position there is no repayment obligation under article 20.
Counsel for the union, Richard Blair, argued that unclassified employees are not civil servants, and article 31 sets out the provisions of the collective agreement that apply to them. It does not include article 20. An employee going back into a classified position must pay the money back pursuant to article 20.2.4 or 20.2.5. However, since article 20 does not apply to the unclassified, the grievor ought not to have had the enhanced severance withheld by the employer. Mr. Blair also noted that Appendix 18 gives certain specific exit rights, but that nothing stops a person from applying in an open competition for a new job in the OPS. He argued further that I could not amend the collective agreement by applying article 20 to an unclassified person when it is not designated as applying to someone in the unclassified service. Article 20 requires classified employees to pay their enhanced severance back when they return to the OPS, but then they get their continuous service credited back to them. Counsel referred me to an earlier decision in this matter, which in his submission recognizes this balance of fairness: OPSEU (Union Grievance) and Ministry of Community and Social Services (2001) GSB 0047/00 (Leighton).
Counsel argued further that OPSEU (Union Grievance) and Management Board Secretariat (1996) GSB 459/96 (Briggs) is distinguishable or manifestly wrong and therefore should not be followed.
Counsel for the employer, Meredith Brown, argued that the grievor is not entitled to the full enhanced severance payment under Appendix 18 since he returned to a job in the OPS. Counsel argued that the board’s March 16, 2001 decision in this matter decided the issue that anybody returning to a position in the OPS had to repay enhanced severance pursuant to article 20. She argued further that the Briggs decision, supra, addressed the very argument put forward by the union in this case and decided the issue. The union in that case argued that the words “in a position” could only mean a classified position. The board in that case decided that articles 24.2.4 and 24.2.5 (now articles 20.2.4 and 20.2.5) did apply to a person returning to an unclassified position and, therefore, that person had to return the enhanced severance.
In Ms. Brown’s submission, the board accepted the arguments of the employer that the purpose of requiring employees to pay back enhanced severance was to avoid “double dipping.” Further the requirement to pay back monies paid under the article was intended as a disincentive for employees to return to the OPS. Finally, counsel for the employer here argued that the requirement to pay back enhanced monies was not simply to restore a continuous service of an employee, but was also to prevent an employee being paid severance at the same time as earning a salary from the OPS.
DECSION
The issue before me is whether the employer, pursuant to article 20.2.5, properly withheld the grievor’s pay in lieu of notice and certain payments made pursuant to Appendix 18 when he returned to an unclassified position in the OPS. Appendix 18 makes the following provision for those employees who decide to exit the OPS:
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 elected 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.
Article 20.2.4 provides as follows:
Where an employee accepts pay in lieu of notice and is re-appointed to a position in the Ontario Public Service prior to the originally projected lay-off date, the employee will repay to the ministry a sum of money equal to the amount paid for the period between the date of re-appointment and the original projected lay-off date. In addition, the employee will repay to the ministry all monies, excluding tuition fees, received under Article 20.3 (Separation Allowance) or paragraph 4 of Appendix 9 (Employment Stability). The employee’s continuous service date, for all purposes except Article 53 or 78 (Termination Payments), shall be deemed to include both service up to the last day of active work and the accumulation of service after the date of re-appointment. The new service date for purposes of termination pay shall be the date on which the employee recommences work.
Article 20.2.5 provides as follows:
Where an employee who accepts pay in lieu of notice is re-appointed to a position in the Ontario Public Service after the original projected lay-off date, and prior to the expiration of a further twenty-four (24) months, the employee will repay to the ministry all monies, excluding tuition fees, received under Article 20.3 (Separation Allowance) or paragraph 4 of Appendix 9 (Employment Stability). The employee’s continuous service date for all purposes except Article 53 or 78 (termination Payments), shall be deemed to include both service up to the last day of active work and the accumulation of service after the date of re-appointment. The new service date for purposes of termination pay shall be the date on which the employee recommences work.
Articles 20.2.4 and 20.2.5 of the collective agreement have been interpreted in OPSEU (Union Grievance), supra decided by Vice-chair Briggs in 1996. The union argued before Vice-chair Briggs that the words “position in the Ontario Public Service” found in articles 24.2.4 and 24.2.5 (now 20.2.4 and 20.2.5) did not refer to an unclassified position. Vice-chair Briggs decided that they did. The reasons were clear. Applying the first principle of contract interpretation, that words should be given their plain meaning, she concluded that she could not read out the words “in the Ontario Public Service,” which qualify the words “a position.” While the language was not as clear as might be liked, Vice-chair Briggs held that the parties must have intended something by including the broad qualifier “in the Ontario Public Service.” Since the Public Service Act, R.S.O. 1990 c.P. 47 (as amended) defines the OPS as including the unclassified service Vice-Chair Briggs decided that the parties intended to require anyone returning to an unclassified position to pay back monies as required under the article. Further, Vice-chair Briggs accepted the employer’s submission that the purpose of articles 24.2.4 and 24.2.5 was to provide a disincentive to employees returning to the OPS.
Mr. Blair argued that I should not follow the Briggs decision for several reasons. He noted that her decision was rendered before Appendix 18, the successor to Appendix 9. Appendix 18 was amended to specifically continue only rights under articles 20.15 and 20.19. Thus, he argued Appendix 18 restored a balance between returned severance and credited seniority. Alternately, counsel argued that Vice-chair Brigg’s decision was wrong in not recognizing the balance of fairness for classified employees returning severance and getting continuous service restored, something that an employee returning to an unclassified position does not get.
I am not persuaded by these arguments. If the parties had intended to renegotiate the effect of Vice-chair Brigg’s decision, all they needed to do was amend what is now articles 20.2.4 and 20.2.5 by removing the words “position in the Ontario Public Service” and replacing it with “a classified position.” This they have not done. Further, I am not convinced that the changes to Appendix 18 achieve what counsel urges me to find. Appendix 18 is clear that exiting employees “will have no other rights under Article 20, except 20.15 and 20.9”. However, articles 20.2.4 and 20.2.5 are not rights, they are obligations. Section 5.2 of Appendix 18 provides that exiting classified employees receive pay in lieu of notice under article 20.2 and whatever is greater of a separation allowance under article 20.3 or enhanced severance in accord with paragraph 4 of Appendix 9. If a classified person exits, he or she receives pay in lieu, and other payments pursuant to article 20, the obligation to pay back these monies survives until the two years after the projected lay-off date, whether the person returns to the unclassified or classified service.
It helps to keep in mind the purpose of article 20.2, which is to give classified employees certain severance payments if they are losing their jobs. But the parties also bargained that if a classified person received monies under this article and returned before the lay-off date, or within a further two years after the lay-off date, then that classified person – no matter what position he or she came back to would be required to pay back monies as specifically provided in articles 20.2.4 and 20.2.5. In addition the employee returning to a classified position gets his or her previous service included for the purpose of a continuous service date. A person returning to an unclassified position may ultimately also benefit from this provision, if he or she secures a classified position.
In conclusion, I am satisfied that changes to Appendix 18 do not alter the result found in Vice- chair Brigg’s decision. Further, it is the well- established practice of this board to follow its previous decisions, unless they are manifestly wrong. I am convinced that Vice-chair Brigg’s decision is correct and interprets the language in the manner intended by the parties.
For the reasons outlined above, Mr. Pereira’s claim for monies withheld by the employer, when he returned to an unclassified position, is hereby denied.
Dated at Toronto this 22^nd^ day of August, 2005.