GSB# 2023-00344

UNION# 2023-0503-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Maynard)

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Kenneth Petryshen

Arbitrator

FOR THE UNION

Robin Lostracco Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 1, 2024

Decision

1In her grievance dated April 21, 2023, Ms. Maynard challenges the Employer’s determination of her continuous service date (“CSD”) and her severance credit date (“SCD”) which she claims had the effect of denying her an appropriate severance payment. The parties agreed to have this grievance addressed in accordance with the med/arb process set out in article 22.16 of the Collective Agreement.

2After hearing opening statements from counsel, I spent time with each party to ascertain the circumstances that gave rise to the grievance. I was provided with a number of documents by the Union, including a document prepared by Ms. Maynard that contained a synopsis of relevant events from her perspective. In determining this matter, I have considered counsel’s statements and the cases they referenced, the circumstances relied on by each party and the documentary material provided by the Union.

3Ms. Maynard was hired on a fixed term contract, effective February 19, 2008, and became a permanent employee on November 2, 2009. Her CSD and SCD at that time was February 19, 2008. She was off on sick leave and paid under the short term sickness plan from February 12, 2010, until she returned on a graduated basis on June 21, 2010. She was off again for about four months beginning on November 15, 2010. She received Employment Insurance for the time she was off work starting November 15, 2010, because her sickness entitlement had been exhausted. The Employer appropriately characterized this four month absence as an unpaid leave due to her illness. After being on long term disability for about six years, Ms. Maynard retired on December 31, 2020.

4When she reviewed her Exit Information Package, Ms. Maynard had questions about the basis upon which the Employer had calculated her severance entitlement. She believed that her years of service for calculating severance entitlements was greater than the 8.5 years of service determined by the Employer. On September 8, 2021, Ms. P. Kelly, Pay & Benefits Specialist, provided Ms. Maynard with a financial statement setting out the basis for the Employer’s determination that she had 8.5 years of service for severance purposes. As provided for in specific provisions in the Collective Agreement, severance payments are based on service accrued only up to December 31, 2016, and an unpaid leave of more than 30 days results in the SCD being adjusted by the same amount of time an employee was on the unpaid leave. Accordingly, Ms. Maynard’s time on long term disability after December 31, 2016, and her four month unpaid leave of absence starting November 15, 2010, is not considered as service time when determining the payment of severance pay. The Employer calculated her severance pay based on her service from June 17, 2008 to December 31, 2016.

5The only issue in dispute concerns the treatment of Ms. Maynard’s four month unpaid leave that began on November 15, 2010. Ms. Maynard contends that the earlier 2010 sick leave and the unpaid leave of absence were absences caused by the discriminatory treatment and harassment from her manager. She maintains that she should have been paid for the four months that started on November 15, 2010, and that this period should count as service for the purpose of severance pay. I find it unnecessary to set out the Employer conduct alleged by Ms. Maynard to have caused her absences from the workplace. I note simply that Ms. Maynard was very troubled by the way she was treated by her manager and that she strongly believes that she is owed a remedy for the months she was absent without pay.

6The Employer takes the position that the claims made by Ms. Maynard and the Union are untimely and that there is no proper basis for extending time limits in this case. I agree with the Employer’s position. The circumstances that gave rise to Ms. Maynard’s issues about the unpaid leave of absence occurred more than ten years before she filed her grievance. The delay is extreme. Even if the time started to run from the time the Employer provided Ms. Maynard with its basis for calculating her severance entitlement, the grievance was filed at least one and a half years late. Although the Union argued that I should extend time limits in this instance, I am satisfied that there is no proper basis for such an extension.

7I find that the Employer calculated Ms. Maynard’s severance entitlement in accordance with the terms of the Collective Agreement. I also find that the grievance is untimely to the extent that it attempts to challenge the characterization of the leave of absence that started on November 15, 2010. Accordingly, Ms. Maynard’s grievance dated April 21, 2023 is hereby dismissed.