(3) release from employment under section 22(4)
of the P.S.A., or
(4) resignation during the surplus notice
period…..
….is entitled to severance pay….."
Counsel for the union contended that an employee
between one and five years of service is entitled to severance pay under
sub-paragraph (4) as having resigned during the surplus notice period.
In the alternative, counsel submitted an entitlement to severance pay
arises under sub-paragraph (3) because the employee has been released.
The arbitrator ruled as follows:
I begin with the union’s alternative argument
concerning article 53.4(a)(3) an entitlement to severance pay when an
employee has been released….
The last sentence of section 1(a) of Appendix 9 to
the collective agreement states:
When an employee has been transferred to a new
employer he or she will be deemed to have resigned and no other
provisions of the collective agreement will apply except Article 53 or
78 (Termination Pay)…
Previous cases have held the employees concerned
were not entitled to severance pay as they are deemed to have
resigned, and therefore have not been released….
The union’s claim under article 53.4(a)(4)
remains to be considered…
Employees who receive "good" offers are
nonetheless surplus in the sense that they are superfluous to the
needs of the public service after the date of transfer. Because they
receive notice of their redundant status in the public service
before the transfer occurs, their deemed resignation on the date of
transfer might be said to occur during their "surplus notice
period" within the meaning of article 53.4(a)(4).
The arbitrator accepted the Union’s argument,
allowed the grievance, and found employees at the two psychiatric
hospitals, with one to five years of service, are entitled to severance
pay.
This decision will result in severance pay for many
divested employees who would not have received it without this
grievance.
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