GSB# 2015-2940; 2015-2941; 2015-2942; 2015-2943; 2015-2973; 2016-0064; 2016-0065; 2016-0764; 2016-2945

UNION# 2015-0468-0047; 2015-0468-0048; 2015-0468-0049; 2015-0468-0050; 2016-0468-0001; 2016-0468-0007; 2016-0468-0008; 2016-0468-0029; 2017-0468-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Posthumus)

Union

• and -

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

Employer

BEFORE

Daniel Harris

Arbitrator

FOR THE UNION

Daniel Anisfeld Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Regina Wong Treasury Board Secretariat Legal Services Branch Counsel

TELECONFERENCE

March 22, 2018

DECISION

1In this matter the Union, The Ontario Public Service Employees’ Union, grieves on behalf of the grievor, Heather Posthumus, that the Employer, the Ministry of Health, has breached Minutes of Settlement, MOS, entered into on October 11, 2017 by the parties to settle the grievor’s grievances.

2The provisions at issue are paragraphs 2 and 4, which read as follows:

2. With immediate effect, the Grievor will use up all her vacation accrual except for 15 days.

3. The Employer agrees to pay out the 15 days referred to in paragraph 2 as a lump-sum payment in the first payroll following December 31, 2017.

3The Union says that, as it turned out, the grievor only had 5.8 days in her vacation bank on the date the MOS was signed. The Employer paid the value of those days on the date set out in paragraph 4.

4The Union submitted that the reference to 15 days indicates that it was the intention of the parties that the grievor was to be paid the value of 15 vacation days. It said that the Employer knew or ought to have known that she had fewer than 15 days and had represented that she had more than 20 days in her vacation bank.

5The Employer submitted that its recollection of the discussions differs. It says that it was the grievor who said she had accrued 20 vacation days. It said that paragraphs 2 and 4 work together to calculate the vacation accrual to be paid out. It was submitted that under paragraph 2 the employee bears the burden of the calculation of the number of days in her bank, and the Employer has the burden of making the appropriate payment under paragraph 4.

6Having considered the submissions of the parties, it is my view that the language of the MOS evidences an intention by the parties that the grievor would be paid the equivalent of fifteen vacation days on December 31, 2017.

7First, I am not persuaded that the discussions during the mediation are germane at this time. Those discussions merged into the MOS. It is the terms of the MOS that are to be interpreted at this stage. This approach was endorsed by Vice-Chair Kirkwood in OPSEU (Gilchrist) and Ministry of Northern Development and Mines (GSB 2010-1064, February 24, 2015, Kirkwood) where she adopted the reasoning of Vice-Chair Abramsky in OPSEU (Victorino) and Ministry of Government Services (GSB 2009-1293, 2009-1750, November 30, 2010, Abramsky). Vice-Chair Kirkwood’s reasons read in paragraph 25 as follows:

25In OPSEU/Victorino and Ministry of Government Services (GSB N0. 2009-1293, 2009-1750) (November 30, 2010) (Abramsky), Vice-Chair Abramsky set out the fundamental principles applied in the interpretation of collective agreements, which is equally applicable to the interpretation of contracts such as this MOS, which is to determine the intent of the parties from the words that they have chosen to use in their contract and to apply such intent as expressed. As quoted by Vice-Chair Abramsky, referring to Brown and Beatty, Canadian Labour Arbitration, 3^rd Ed, at para. 4:2100:

Accordingly, in determining the intention of the parties, the cardinal presumption is that the parties are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions. The same excerpt continues that: “arbitrators have generally assumed that the language before them should be viewed in its normal or ordinary sense, unless that would lead to some absurdity or inconsistency with the rest of the collective agreement…

and further state that:

where there is no ambiguity of lack of clarity in meaning, effect must be given to the words of the agreement, notwithstanding that the result may be unfair or oppressive…

8It is the intention of the parties gleaned from the words they chose to express their intentions that is at issue here, not the discussions that preceded the drafting of the MOS.

9Paragraphs 2 and 4 are clear and unequivocal. In paragraph 2, it is agreed that payment out to the grievor of vacation accrual would not exceed 15 days. Had the parties intended any diminution below 15 days, it would have been a simple matter to have worded the clause in such a fashion to achieve that effect. It was the figure of fifteen days that was in the minds of the parties.

10Paragraph 4 reinforces the intention to pay out the fifteen days as a lump-sum on a date certain.

11Accordingly, I find that the parties intended that the grievor be paid a lump-sum payment equivalent to fifteen days vacation on December 31, 2017. Given that the Employer paid the equivalent of 5.8 vacation days, I hereby order that the grievor be paid the remaining 10.2 days forthwith.