GSB# 2003-2051

UNION# 2002-0504-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lall)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Mary Anne Kuntz Acting Supervisor, Contract Enforcement Ontario Public Service Employees Union

FOR THE EMPLOYER

Lucy McSweeney Senior Counsel Management Board Secretariat

HEARING

January 12, 2005.

Award

The grievor, Philip Lall, alleges that the Employer has improperly denied him a separation allowance as set out in Article 20.3 of the collective agreement, even though he elected Factor 80 when notified of his lay-off. For all of the reasons set forth below, I conclude that the grievance must be dismissed.

Facts

The grievor served as a Systems Officer 3 in the Ministry of Health and Long Term Care, and had a service date of August 30, 1976. On June 20, 2000, the Ministry advised affected staff of the implementation of a “New Integrated Network Service” which would be provided “through a private sector network integrator.” The Ministry advised that it would be commencing the “Request for Proposals” (RFP) process in July 2000, and that the project would take some fifteen to eighteen months to implement.

On the same date, the affected employees, including the grievor, were advised that they had the option to be included in the RFP or not, and further noting two choices if they elected not to be included in the RFP. Under the first option, the employee would be declared surplus, with the employee leaving the public service immediately with certain benefits (specifically, six months pay in lieu under Article 20.2 and the greater of separation allowance under Article 20.3 or enhanced severance under paragraph 4 of Appendix 9, plus termination pay in accordance with Article 53 or 78).

Under the second option, an employee could use the surplus package to bridge to their first eligible retirement, using paid and unpaid leaves to bridge (pursuant to Section 2, Appendix 18) to their retirement date. Employees choosing this option, however, were required to “waive all rights to displacement, redeployment, pay in lieu and recall.”

The grievor selected both options under the category of being removed from the RFP list, apparently because it was unclear at the time whether he would be eligible for Factor 80.

On August 23, 2002, the Ministry advised the grievor, in accordance with Appendix 18, Section 5 of the collective agreement, which pertains to employees who elect not to be included in an RFP, that he was declared surplus effective August 27, 2002. In the Ministry’s letter, he was advised of two options. First, he could elect “to receive the full package as per Appendix 18, Article 5.2, under which he would exit the public service immediately and receive pay in lieu of notice under Article 20.2, and either a separation allowance under Article 20.3 or enhanced severance payment per paragraph 4 of Appendix 9; termination payments per either Article 53 or 78, and $500 for career transition services. Option #2 was set forth as follows:

Option #2

You may elect to retire under the Surplus Factor 80 program. Should you elect this option you will remain on payroll for your 6 month notice period and will retire at that time. Should you elect this option you will forfeit any further surplus entitlements including pay in lieu and enhanced severance. You remain eligible to receive legislated severance.

Mr. Lall elected Option #2. Mr. Lall retired at the end of his notice period and is receiving his full, actuarially unreduced pension.

In his grievance, Mr. Lall alleges that the Ministry should have also paid him a separation allowance under Article 20.3. That provision provides as follows:

20.3.1 Where an employee resigns and his or her resignation takes effect within one (1) month after receiving surplus notice, he or she shall be entitled to a separation allowance of two (2) weeks’ salary for each year of continuous service to a maximum of twelve (12) weeks’ pay. … An employee who resigns pursuant to Article 20.3 will not be eligible for any other entitlements under Article 20.

20.3.2 Where an employee resigns later than one (1) month after receiving surplus notice, he or she shall be entitled to a separation allowance of four (4) weeks’ salary, … An employee who resigns pursuant to Article 20.3 will not be eligible for any other entitlements under Article 20.

Decision

Significantly, the parties to the collective agreement, the Union and the Employer, agree that Mr. Lall is not entitled to a separation allowance under Article 20, since he elected to retire under the Surplus Factor 80 program. Consequently there is no dispute between the parties to the collective agreement. On this basis alone, the grievance must be dismissed.

I further conclude that the grievance should be dismissed on its merits. The language of Article 20.3 clearly applies to an employee who “resigns”. It does not apply to an employee who “retires.” There is a significant difference under this collective agreement between an employee who resigns and one who retires. In my view, Mr. Lall did not “resign” his employment as contemplated by either Article 20.3.1 or 20.3.2. Instead, as set out in Option #2, he remained on the payroll for his six months notice period and then retired at that time.

Further the purpose of Article 20 is to provide a myriad of benefits to employees who have been surplused and must leave the public service, without a job or income. It does not pertain to employees who, at the end of their notice period, are entitled to a full, actuarially unreduced pension.

The parties’ distinction between an employee who resigns and one who retires is further seen in Appendix 9, paragraph 4. In that provision, the parties provide for enhanced severance for employees who are laid off or who have resigned and received their pay in lieu of notice. It states that employees who are entitled to amounts under Article 20.3 (Separation Allowance) are to receive the greater of those amounts or the amount specified in Appendix 9, paragraph 4. It further states: “This paragraph will not apply to employees who are eligible to retire and receive an actuarially unreduced pension.” The OPSEU Pension Trust documents and information sheets are also very clear that an employee who elects the Surplus Factor 80 option waives all other surplus entitlements. Clearly, the separation allowance provided for in Article 20.3 is a surplus entitlement that is waived when an employee elects to retire under Factor 80.

In OPSEU (Plaza) and Management Board Secretariat (1997), GSB No. 0481/96 (Fisher, Vice-Chair), the Board held, in relation to the preceding collective agreement, that in “order to qualify for the Factor 80 Program, the employee must waive all their surplus rights, which includes not only the right to recall, tuition assistance but also the separation allowance under Article 24.3.1.” The same conclusion applies to the separation allowance under Article 20.3.

Accordingly, I find that the grievance must be dismissed.

Issued at Toronto this 18^th day of January, 2005.