GSB#2008-3125

UNION#2008-0436-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Williamson)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Robin Gordon Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Brian Loewen Ministry of Government Services Counsel

HEARING

February 3, 2010.

Decision

1This case came before me under Article 22.16 of the parties’ collective agreement, and the parties agree that the decision “shall have no precedential value…”

2At issue is whether the grievor is entitled to severance pay under Section 64(1) of the Employment Standards Act as well as benefits under the parties’ Memorandum of Agreement entered into in regard to the closing of the Ministry’s facility at Rideau Regional Centre. At the time of the closure in 2009, the grievor was employed under an unclassified on-call contract by the Ministry of Safety and Security as a switch-board operation/receptionist and had held that position since 2000. She also was employed, as of 2006, by the Ministry of the Attorney General as a part-time flexible classified Court Reporter, a position that was completely separate from her position at Rideau and continued after the closure.

3Having carefully considered the specific and highly unusual facts of this case, I conclude (subject to the Employer’s arguments concerning a potential exemption under the Regulations) that the grievor is entitled to severance pay under Section 64(1) of the Employment Standards Act, but is not entitled to benefits under the parties’ Memorandum of Agreement. Under the Memorandum of Agreement, the grievor is not entitled to benefits because she did not “exit the Ontario Public Service”, as required by that agreement. But under the Employment Standards Act, there was a severance of “an employment relationship.” The Act is ambiguous as to whether the cessation of one position with an employer like the Ontario government while maintaining another, completely separate position, entitles the employee to severance pay for the loss of that position. Under the specific facts of this case, I resolve that ambiguity in favour of allowing the benefit. In the event that, eventually, the grievor may be entitled to severance pay for the loss of her position as a Court Reporter, the Act contemplates an off-set for severance already paid, and the Union agreed that the grievor’s credit date should not include her Rideau service.

4This determination, as noted, is subject to the Employer’s argument that the grievor is not entitled to benefits under the Regulations. If the parties’ cannot resolve that issue, another hearing date may be set. I will remain seized.