GSB#2012-4547

UNION#2013-0234-0022

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Diruzza)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Jackie Crawford Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

James Cheng Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

January 14, 2015

Decision

1The Employer and the Union at the Maplehurst Correctional Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. Some of the grievances were settled through that process. However, a few grievances remained unresolved and therefore require a decision from this Board. The Protocol provides that decisions will be issued within a relatively short period of time after the actual mediation sessions and will be without reasons. Further, the decision is to be without prejudice and precedent.

2Aldo Diruzza filed a grievance that alleged the Employer and the Ontario Pension Trustees are discriminating against him - “denying me the ability to retire at 80 points or above without a penalty because of my age.” He also took issue with the fact that there would be a “clawing back of my OPSEU pension at 65 years of age even if I decide to take my CPP at 70”.

3The grievor noted that he was not able to retire when his age and length of service were equal to 80 points because he had not yet reached the age of 60. This restriction he claims is discrimination based on age. He was adamant that this treatment was contrary to the Collective Agreement and the Ontario Human Rights Code.

4In response to this view, the Employer noted that the Code contains the following provision:

Employee benefit and pension plans

25. (1) the right under section 5 to equal treatment with respect to employment is infringed where employment is denied or made conditional because a term or condition of employment requires enrolment in an employee benefit, pension or superannuation plan or fund or a contract group insurance between an insurer and an employer, that makes a distinction, preference or exclusion on a prohibited ground of discrimination. R.S.O. 1990 c. H.19 s.25 (1)

Same

(2.1) The right under Section 5 to equal treatment with respect to employment without discrimination because of age is not infringed by an employee benefit, pension, superannuation or group insurance plan or fund that complies with the Employment Standards Act, 2000 and the regulations thereunder. 2005, c.29 s. 1 (5)

5I agree with the Employer’s view that there is no violation of the Ontario Human Rights Code or any other legislation because of the agreement made by the parties that there is some age restriction considered regarding Factor 80 and pensions.

6Accordingly, the grievance is denied.