IN THE MATTER OF AN ARBITRATION BETWEEN: CANADA POST CORPORATION ("the Employer") AND: CANADIAN UNION OF POSTAL WORKERS ("the Union") IN THE MATTER OF: NATIONAL POLICY GRIEVANCE #N00-03-00006 RE: SEVERANCE PAY
SOLE ARBITRATOR: Kevin M. Burkett
APPEARANCES FOR THE EMPLOYER: Rolland Forget - Counsel Jacques Monger APPEARANCES FOR THE UNION: David Bloom - Counsel John Fehr Hearings in this matter was held in Ottawa, Ontario on July 13, October 4 and December 3, 2004 and March 10 and November 14, 2005. A W A R DThis is a national policy grievance. The Union grieved on March 5, 2004 that the Employer was in violation of article 28 of the collective agreement by reason of calculating severance pay entitlements for periods of part-time, temporary and casual service based on scheduled hours. The Employer disputes the claim, arguing that under the terms of article 28, Severance Pay, the calculation of severance entitlement for part-time, casual and temporary service, is on the basis of scheduled hours. There is no dispute with respect to my authority to hear and determine this matter. The relevant parts of article 28, Severance Pay, provide as follows. 28.01 Acquired Rights Regular employees who are employees of the Corporation on September 1, 2003 shall be entitled to an amount equal to the severance pay entitlement they will have accumulated as of December 31, 2003. 28.02 Entitlement The amount to which an employee is entitled shall be equal to one week of regular salary for each year of continuous service up to December 31, 2003, up to a maximum of twenty-eight (28) weeks. If the employee, based on his or her anniversary date, has not completed a full year of employment to December 31, 2003, the amount payable for the partial year of employment shall be prorated. Payment to employees who are part-time, or whose continuous employment includes a period of both full-time and part-time employment, will be calculated in accordance with clause 28.04 of the collective agreement expiring January 31, 2003. Prior service as a temporary and/or casual employee will be included in determining the entitlement under this paragraph and shall be prorated in accordance with clause 28.04 of the collective agreement expiring on January 31, 2003. Article 28.04 of the predecessor collective agreement that is incorporated by reference into article 28.02 of the instant collective agreement reads: 28.04 Full-time – Part-time Employees Notwithstanding the provisions of this article, the employee whose continuous employment includes both a period of full-time continuous employment and another of part-time employment has, for the purpose of severance pay, his or her complete years of continuous part-time employment reduced pro rata to the difference between the weekly part-time hours of work and the normal weekly hours of work indicated in the normal schedule of full-time employees. In the case of an employee who, on the date of termination of employment, was a part-time employee, the rate of weekly pay adjusted to the weekly full-time rate constitutes the rate of weekly pay to be received by the said employee at the time of termination of employment. The Employer and the Union agreed in the bargaining for the instant collective agreement to cap entitlement to severance pay as of December 31, 2003. Under the predecessor collective agreement, severance in the amount of one-half week for each year of service to a maximum of 26 weeks was provided to an employee with 10 or more years of service upon resignation. Further, severance in the amount of one week for each year of service to a maximum of 28 weeks was provided upon death or retirement. Article 28 of the instant collective agreement provides a payout to all regular employees, either before July 1, 2004 or at the time of retirement, of one week of regular salary per year of continuous service up to December 31, 2002 to a maximum of 28 weeks. The second paragraph of article 28.02 deals with the calculation of the payment to employees who are part-time or whose continuous service includes a period of both full-time and part-time service. The paragraph stipulates that the severance payment "will be calculated in accord with article 28.04 of the predecessor collective agreement." The third paragraph of article 28.02 goes on to stipulate that prior service as a temporary and/or casual employee will be included in the entitlement calculation "and shall be prorated in accordance with clause 28.04 of the collective agreement expiring on January 31, 2003." It is the application of article 28.04 of the predecessor collective agreement to both part-time employment and to casual and/or temporary employment in the calculation of severance entitlement under article 28 of the instant collective agreement that is in dispute. As noted, in broad strokes, the Union takes the position that the severance payment for this service under article 28.04 of the predecessor collective agreement is to be on the basis of hours worked while the Employer takes the position that this calculation is to be on the basis of scheduled hours. Having considered the submissions of the parties with respect to whether article 28.02 is ambiguous as would allow the admission of extrinsic evidence, I am satisfied that article 28.02 is at least latently ambiguous. Accordingly, extrinsic evidence is admissible both for the purpose of disclosing the ambiguity and for the purpose of resolving it. Extrinsic evidence was led in respect of both the bargaining that resulted in the instant collective agreement and the past practice under article 28.04 of the predecessor agreement that is incorporated by reference into article 28.02 of the instant collective agreement. The evidence as it pertains to 2003 bargaining establishes the following.
At present, we pay severance to eligible employees who leave the company regardless of the reasons for their departure. This means that employees who resign voluntarily or retire with a pension are entitled to substantial payouts. This type of generous severance goes well beyond that offered in the rest of industry. Rather than rewarding employees in this manner, the company should be focusing its limited resources on maintaining the fundamental benefit plans that employees are relying on now and in the future. Benefits earned to date will be protected and we need to provide options to eligible employees on how and when they can take their severance pay.
The Corporation proposes the elimination of the severance pay entitlement, in consideration of a lump sum payment to regular employees either by May 1, 2004 or upon retirement. See the attached letter and revisions to clauses 18.01 to 28.06. Collective agreement references to severance pay to be deleted. The letter from the Employer to the Union attached to the May 27, 2003 proposal reads: Re: Modification of Severance Pay Entitlement 1. This letter contains the terms and conditions applicable to the discontinuation of the severance pay entitlement contained in Article 28 of the collective agreement expiring January 31, 2003. 2. The severance pay entitlement contained in Article 28 of the collective agreement expiring January 31, 2003 is, in accordance with the agreement of the parties, discontinued effective January 1, 2004. 3. In consideration of this modification all regular employees, save and except personnel commencing their employment on or after the date of signing of the collective agreement, shall be entitled to one (1) week of regular salary per year of continuous employment up to December 31, 2003. Payment for partial years of service will be prorated. 4. Payment for personnel who are part-time employees, or whose continuous employment includes a period of both full-time and part-time employment, will be calculated in accordance with clause 28.04 of the collective agreement expiring January 31, 2003.
28.01 Regular employees who are employees of the Corporation on September 1, 2003 shall be entitled to an amount equal to the severance pay entitlement they will have accumulated as of December 31, 2003. 28.02 The amount to which an employee is entitled shall be equal to one week of pay for each year of continuous service as of December 31, 2003, up to a maximum of twenty-eight (28) weeks of pay. The amount payable for part of a year shall be prorated based on the time worked. When a full-time employee's continuous service includes temporary, part-time or casual periods of employment, adjustments shall be made based on the time worked. The same shall apply to a part-time employee whose continuous service includes periods of temporary, casual or full-time employment.
This is further to our meeting and telephone conversations on the above subject. Please be advised that we have verified with our Director of Benefits Administration, Dennis Sullivan, that the practice for the pro-ration of part-time service has been consistent and that the practice is to use the part-time schedule of hours of work when pro-rating for severance purposes. Dennis Sullivan has also confirmed with Arlene Shipper that the documents the Union provided us at the meeting of August 27, 2003 also demonstrate that scheduled hours were used in this particular example. We have also confirmed with our Internal Audit group the results of a recent audit of the payment of severance in which it was confirmed that only scheduled hours were used in the calculation of both full-time and part-time severance. Therefore, we are reaffirming that our past practice for the pro-ration of part-time service is the method we will use for the pro-ration of part-time service under the new Article 28. In terms of the pro-ration of temporary service, we will pro-rate employees' continuous service using scheduled hours (should this information be available) or 20 hours per week (should this information not be available). Attached please find the details of our approach.
SUBMISSIONS Union It is the position of the Union that the article 28.04 calculation of severance pay for part-time service under the predecessor collective agreement, as incorporated into the instant collective agreement, is to be on the basis of either "weekly part-time hours of work" in the case of employees with both full-time and part-time service or "weekly pay" in the case of part-time employees. Absent any reference to scheduled or normal hours in the predecessor article 28.04 and in the face of the inclusion of temporary and casual service in the calculation, which are usually without scheduled hours, it is argued there is no basis upon which to read in scheduled or normal hours as the Employer would have me do. In support of its position that effect be given to the words used in the predecessor article 28.04, the Union maintains that the purpose of severance pay is to reward time worked. These are sophisticated parties, it is argued, who must be presumed to have intended that the severance calculation be based on "part-time hours of work," as they have articulated, such that, given the purpose of severance pay and the express reference to normal or scheduled hours elsewhere within the collective agreement (article 14), there is no basis upon which to infer that a calculation based upon scheduled hours was intended. It is the position of the Union that the language of article 28 is clear and unambiguous and further that there is no evidence of a compelling practice acquiesced in by it. Accordingly, relying on the test laid down in re: International Association of Machinists, Local 1740 and John Bertram and Sons Co. Ltd. 18 LAC 362 (Weiler) as cited with approval in re: NAV Canada and CATCA (1998)74 LAC (4 th) 163(Swan), the Union argues that there is no basis upon which to rely upon the evidence of past practice to establish and resolve any ambiguity. Further, relying on Canada Post and CUPW (1984) unreported (Burkett), Dominion Stores Ltd. and Retail Wholesale (1984) 13 LAC (3 d) 11 (Weatherill) and Canada Post and CUPW (July 28, 1998) unreported (Brunner), the Union asserts that the conditions necessary to establish an estoppel against it do not exist. As for the evidence related to the 2003 round of collective bargaining, the Union maintains that absent any discussion as to intention, its withdrawal and acceptance of the language proposed by the Employer cannot support a finding of shared intention nor give rise to an estoppel. The Union relies upon the following authority in support of the proposition that, absent any discussion with respect to the calculation of severance pay for part-time, casual or temporary employees under article 28.04, there can be no finding of a shared intention nor of an estoppel:
To the extent that a negative inference might be drawn from the Union's withdrawal of its proposal that the severance payment be calculated on the basis of hours worked, the Union reminds me that its withdrawal was in response to the Employer's agreement to include temporary and casual service. I am further reminded that temporary and casual employees do not usually have scheduled hours of work. Finally, I am reminded that the Employer's October 9, 2003 reliance upon the audit was after the completion of bargaining. In the Union's submission, therefore, the bargaining evidence is insufficient to support a conclusion that there was any consensus or that the Union made a clear representation that it agreed with the scheduled hours calculation. The Union submits that the evidence of bargaining is as lacking as it was in re: White Spot (supra). This is especially so, it is argued, where there is no national practice or formal policy document and where the evidence of Ms. Shipper and Ms. Ryan dealt with regional application. As for the audit itself, the Union submits that because only 18 files dealt with its members who had part-time or a combination of full-time and part-time service and because there were errors and omissions with respect to a number of those files, the weight that might otherwise be attributed to the audit is undermined. The Union asks me to find that the extrinsic evidence supports neither a finding of consensus nor an estoppel such that I am left with the language of the collective agreement that directs that the calculation for part-time service be based on weekly part-time hours of work or the weekly rate of pay. The Union clarified that it is seeking a severance entitlement for part-time service that is based upon extended hours up to 40 in a week but not overtime hours beyond 40 in a week. Employer The Employer argues that the second last paragraph of article 28.02 of the current collective agreement, that incorporates by reference article 28.04 of the predecessor collective agreement in respect of the calculation of the severance payment for part-time, casual or temporary service, must be read in the context of article 28 as a whole. The Employer submits, firstly, that the article 28.01 entitlement of "regular employees" to an amount equal to the severance pay entitlement they will accumulate to December 31, 2003 includes both full-time and part-time employees. In this regard, I am referred to the definition of a "regular employee" under article 55.01 as "any employee hired for an indeterminate period and on a permanent basis, full-time or part-time." It is argued, therefore, that "the amount to which an employee is entitled ..." under the first paragraph of article 28.02 applies to both full-time and part-time employees. Given that the amount is "one week of regular salary for each year of continuous service ... up to a maximum of twenty-eight (28) weeks," the Employer submits that it cannot be that the amount to which a part-time employee is entitled somehow becomes one week of actual salary for each year of continuous service. It is argued that the second paragraph of article 28.02 of the instant collective agreement, that incorporates by reference article 28.04 of the predecessor collective agreement, deals with the proration of part-time service in order to provide a severance payment based on "regular salary" that reflects part-time hours. Under a collective agreement that is not consistent in its phraseology with respect to part-time proration, the Union cannot succeed, it is argued, on the basis that article 28.04 of the predecessor collective agreement refers to the "rate of weekly pay." Rather, the Employer submits that the agreement is sufficiently ambiguous in this regard so as to allow recourse to both the past practice and the bargaining history evidence. In any event, it is argued that the incorporation by reference of article 28.04 of the predecessor agreement in and of itself requires an examination of the practice under that collective agreement in respect of the calculation of severance pay for part-time employees or employees with a combination of full-time and part-time service. The Employer relies upon the evidence of Mr. Goodwin which, it maintains, establishes, firstly, that the Employer rejected the Union proposal that all service for purposes of the severance calculation be on the basis of hours worked and responded with a proposal of its own based on scheduled hours, including the proration of part-time service as under the predecessor collective agreement; secondly, that without discussions the Union abandoned its proposal and accepted the Employer's proposal as part of an overall resolution; thirdly, after the July 26, 2003 agreement the Union, relying on the document it had received from Ms. Shipper, advised the Employer that the past practice had been to calculate the severance payment for part-time service on the basis of hours worked; fourthly, that Mr. Goodwin investigated and responded that the calculation had always been on the basis of scheduled or assigned hours; fifthly, that the Union then signed the collective agreement on September 30, 2003 containing the article 28 that had been proposed by the Employer; sixthly, that Mr. Goodwin followed up with the October 9, 2003 letter confirming the past practice of using scheduled or assigned hours for the severance calculation and advising as to how it intended to count temporary service; and finally, that the Union held to its position that the Shipper document supported its position. The Employer submits that the evidence of Ms. Shipper serves to both refute the Union contention that the document she had provided supported its position and to establish that the calculations shown in the document were on the basis of scheduled or assigned hours. The Employer emphasizes that Ms. Shipper's evidence is that she had been instructed at the national level as to how the severance calculation was to be done. I am asked to take from Ms. Shipper's evidence that the national practice was to do the calculation as she had been instructed, that is, on the basis of scheduled hours. It is submitted that the evidence of Ms. Ryan going back to the 1970s under the Treasury Board directive confirms Ms. Shipper's evidence that the calculation has always been done on the basis of scheduled or assigned hours. It is submitted by the Employer that the evidence of Ms. Christie with respect to the audit also supports its position. The Employer argues that her evidence establishes that the accepted method of doing the calculation was on the basis of scheduled or assigned hours and further that in the course of the audit there were no instances where the calculation for a part-time employee or an employee with a combination of both full-time and part-time service had been done on the basis of hours worked. In asking me to find that the past practice has been to calculate the severance payment for part-time service on the basis of scheduled or assigned hours, the Employer points out that there is no evidence of a payment ever having been made on the basis of actual hours worked. The Employer argues in the alternative that even if I am satisfied that the language clearly and unambiguously supports the Union position, the consistent application of the clause in a manner that saw the severance calculation based upon assigned or scheduled hours, without objection by the Union, gives rise to an estoppel. I am reminded that the Union never grieved or otherwise objected to the way in which the severance calculation had been performed. The Employer disputes that the inclusion of temporary and casual service supports the Union interpretation. This is so, it is argued, because neither temporary nor casual service had ever been counted. Because casual and temporary service is often without scheduled hours and because in some cases the records in respect of this service may no longer be available, the Employer asserts that its proposal, made in its October 9, 2003 letter, to rely on scheduled hours when the records exist and otherwise to assume 20 hours per week is both fair and reasonable. Neither the agreement to include casual and temporary service nor the Employer proposal as to how to incorporate such service supports the inference, it is argued, that the intention was to base the severance pay calculation on actual hours worked. The Employer relies upon the following authority in support of its position:
Union Reply The Union disputes in reply that its interpretation is incorrect because it treats regular and part-time employees differently. It is the position of the Union that even though a regular employee may be either full-time or part-time, article 28.02 creates a distinction between full-time and part-time employees where the entitlement of a full-time employee is one week of regular salary, i.e. 40 hours, for each year of service, while the regular salary for part-time service is determined by one of the two calculations described in article 28.04 of the predecessor collective agreement. A part-time employee, it is argued, is entitled under article 28.04 of the predecessor collective agreement to a calculation based on up to 40 hours in a week, i.e. inclusive of extended part-time hours but, as with a full-time employee, exclusive of overtime. In the result, although the calculations are different, there is no discrepancy as between the treatment of part-time service and full-time service. The Union reiterates that the Employer never articulated its interpretation at the bargaining table nor revealed any audit results at the bargaining table. In particular, the Union disputes that it was ever discussed or agreed that, whatever the practice had been under the predecessor collective agreement, that practice would continue. It is the position of the Union, therefore, that even if the language is ambiguous, I ought not to decide this matter on a "little bit" of evidence with respect to practice. Further, absent any discussions or evidence of a quid pro quo, it is submitted by the Union that its withdrawal of its severance pay bargaining proposal did not constitute a representation. Absent a representation and absent a national practice that was concurred in by it, I am referred back to the language of article 28.04 of the predecessor collective agreement that defines the calculation for part-time service in terms of hours worked. I am asked to give effect to this language. DECISION The issue to be decided is whether, on the language of articles 28.01 and 28.02 of the instant collective agreement and article 28.04 of the predecessor collective agreement as incorporated by reference, the severance pay calculation for part-time, casual and temporary service is to be on the basis of regular or scheduled hours as opposed to hours worked. Although an article must be read in its entirety, for reasons that will become clear I intend to deal firstly with part-time service, i.e. the meaning of the second paragraph of article 28.02 read within article 28 as a whole, and then with casual and temporary service under the third paragraph of article 28.02. The language of article 28 is anything but clear. Article 28.01 establishes an entitlement to a severance payout for "regular employees ... equal to the severance pay entitlement they will have accumulated as of December 31, 2003." Under article 55.01(b), regular employees may be either full-time or part-time hired for an indeterminate period on a permanent basis. Casual and temporary employees, therefore, are not regular employees within the meaning of this collective agreement. Article 28.02 deals with the calculation of the entitlement. The first paragraph specifies that "the amount to which an employee is entitled shall be equal to one week of regular salary for each year of continuous service up to December 31, 2003 ...." The second paragraph deals with "payment to employees who are part-time or whose continuous employment includes a period of both full-time and part-time employment" and specifies that the calculation "will be in accordance with clause 28.04 of the collective agreement expiring January 31, 2003." Article 28.04 of the predecessor collective agreement speaks in terms of the "weekly rate of pay or "weekly part-time hours" as governing for part-time service. Given the absence of specificity in the first paragraph of article 28.02 as to whether the clause pertains to full-time employees only (with the second paragraph dealing separately with part-time employees) or whether the first paragraph of article 28.02 covers both full-time and part-time employees (with the second paragraph limited to the adjustment of part-time service to full-time equivalent), there exists an ambiguity. Article 28.02 is ambiguous with respect to whether the part-time entitlement is to be calculated on the basis of "regular salary" based on scheduled hours or on the basis of the "rate of weekly pay" based on hours worked. Accordingly, extrinsic evidence is admissible to resolve this ambiguity. This evidence is also admissible in support of the Employer's argument that regardless of which interpretation is found to be correct, the Union is estopped from asserting the claim that it now does. Finally, this evidence is admissible on the somewhat unusual facts of this case where, in bargaining for a wind-up to the severance plan, the parties agreed to be governed by the language of the predecessor collective agreement in the calculation of a severance payout involving part-time service. This last point deserves some explanation as it bears directly upon the standard that applies in relying upon the extrinsic evidence to establish a shared intention. In the normal course, in order to establish a shared intention that may be relied upon to interpret the collective agreement, the evidence must establish that officials with responsibility for negotiating and/or administering the collective agreement understand and have either agreed to an interpretation or acquiesced in a practice that supports a particular interpretation (see re: International Association of Machinists, Local 1740 and John Bertram and Sons Co. Ltd. 18 LAC 362 (Weiler)). However, where the resolution to a discrete issue arising in bargaining is to incorporate by reference a clause from the predecessor collective agreement that would not otherwise be renewed, it must be assumed, absent any language to the contrary, that the parties have agreed to be bound by that clause as it has been applied under the predecessor collective agreement. The agreement, in effect, is to replicate the practice under the predecessor clause that has been incorporated by reference; that is, to have the predecessor clause applied in the same manner going forward as it has been in the past. These parties understood this to be so as evidenced by their subsequent disagreement as to what the practice had been. It follows, therefore, that evidence that establishes the practice, regardless of concurrence or acquiescence by someone in authority, is determinative. The knowledge or lack thereof of persons in authority as to the specifics of the practice, whatever it might have been, is irrelevant in determining what the practice was. It is to be noted, as well, that in order to succeed, it is the Union, as the party alleging a breach of the agreement, that must establish that the practice under article 28.04 of the predecessor collective agreement was to calculate severance pay in respect of part-time service on the basis of hours worked. While the bargaining dynamic in this case is significantly different than that which existed in re: White Spot (supra), as relied upon by the Union, the evidence pertaining to bargaining does not take me beyond the ambiguity that has been identified. In contrast to White Spot (supra) where there had been no discussion around the issue of an employee's right to wear a union pin at work but where, even though the union withdrew its proposal, the right could be pursued elsewhere under the collective agreement, the issue here could not be pursued elsewhere under the collective agreement and had been apparently resolved in the Employer's favour when the Union proposed an hours worked severance pay calculation for both full-time and part-time employees and then withdrew its proposal in favour of the Employer's. However, be that as it may, because the Employer proposal in respect of the severance calculation for part-time service has been found to be ambiguous, the Union's acceptance of it cannot be construed as an acceptance of the Employer's interpretation. This is especially so where, on the Employer's evidence, the agreement was to calculate part-time service as it had been calculated in the past and the language proposed and accepted is open to two interpretations, one of which the Union now asserts. The fact that the Employer made known its understanding as to the practice under article 28.04 of the predecessor collective agreement on September 12, 2003, prior to the formal signing of the collective agreement on September 30, 2003, without the Union challenging the Employer's understanding, does not alter this result. This is so because the parties had already entered into and ratified a Memorandum of Settlement under which the part-time severance calculation was to be as it has been in the past. In these circumstances, each side was free to hold to its own view of what the practice had been. This takes me to the evidence pertaining to the application of article 28.04 of the predecessor collective agreement. Keeping in mind that in this case the evidence does not have to disclose Union knowledge or acquiescence to be determinative, I have not been satisfied, notwithstanding the absence of any written policy or directive, that the practice under this clause was to calculate severance pay in respect of part-time service on the basis of hours worked. Firstly, there is no evidence of any employee ever having received severance pay calculated on the basis of part-time hours worked. Further, Ms. Shipper, who was responsible for the severance pay calculations done out of the Winnipeg office, testified that she had always used scheduled hours and had been instructed in this regard by Ms. Jodi Hamilton, an Ottawa-based national benefits policy group officer. Ms. Lori Ryan, who had been responsible for the severance pay calculation in Newfoundland, testified that she too had calculated severance pay for part-time employees or employees with a combination of full-time and part-time service on the basis of scheduled or regular hours. It is her evidence that in the period immediately after Canada Post became a Crown corporation in 1987, the Treasury Board manual governed. This manual shows a scheduled hours calculation for part-time service. Finally, Ms. Jocelyn Christie, the Employer's Manager of Internal Audit, testified that scheduled hours are used in the calculation of severance pay for part-time employees and employees with both full-time and part-time service. The audit results do not reveal, in any of the cases of severance calculation for CUPW members with part-time service, that hours worked had been used in place of scheduled hours. There were other types of errors identified but none that would support the finding that under article 28.04 of the predecessor collective agreement hours worked, as distinct from scheduled hours, were used to calculate severance pay for part-time service. On the basis of the foregoing, I am simply unable to find that the severance pay calculation in respect of part-time service under article 28.04 of the predecessor collective agreement was done on the basis of hours worked as I would have to find in order for the Union to succeed. Indeed, on the preponderance of the evidence, I am satisfied that the part-time severance calculation was done under article 28.04 of the predecessor collective agreement on the basis of scheduled hours. Turning to the severance calculation as it pertains to casual and/or temporary service. The Union relies upon the agreement to include temporary and/or casual service in the severance pay calculation as evidencing an acceptance by the Employer that all part-time, temporary or casual service is to be calculated under article 28.04 of the predecessor collective agreement on the basis of hours worked. This is so, it is argued, because most temporary and casual service is not on the basis of scheduled hours and, therefore, if article 28.04 of the predecessor collective agreement is to have uniform application, it must be that the reference to "the rate of weekly pay" is to actual pay based on hours worked. This argument might have merit if temporary and/or casual service had previously been included in the article 28.04 calculation or if the inclusion of temporary and casual service had been made a part of the second paragraph of article 28.02 along with part-time service instead of being the subject matter of a separate and self-standing paragraph. Furthermore, the evidence related to the bargaining reveals that temporary and casual service was dealt with as a distinct issue, with the Employer's agreement to include this service in the severance calculation contained in its last tabled amendment which, I have observed, occupied its own paragraph with its own language. It is that language that is determinative in deciding the basis upon which temporary and/or casual service is to be dealt with for purposes of the severance payout calculation. The third paragraph of article 28.02 pertaining to casual and temporary service is worded differently than the second paragraph of article 28.02 and, absent evidence of past practice, does not support the same finding as was made in respect of part-time service. The third paragraph contains two separate and distinct components joined by the conjunction "and." The first is a clear and unequivocal agreement that, for the first time, "prior service as a temporary and/or casual employee will be included in determining the entitlement under this paragraph." There is no linkage to article 28.04 of the predecessor collective agreement nor is there any reference to "regular salary" or to scheduled or regular hours. Indeed, casual and/or temporary employees are not regular employees within the meaning of article 55.01 of the collective agreement. The language of the first component can only be read as supporting an undertaking to count all prior temporary and/or casual service in the severance pay calculation. The second component provides for the prorating of temporary and/or casual service "in accordance with clause 28.04 of the collective agreement expiring on January 31, 2003." The intended meaning of this provision is somewhat problematic given that article 28.04 of the predecessor collective agreement expressly applies to part-time service and had never been applied to casual and/or temporary service. However, given that the general severance entitlement under paragraph 1 of article 28.02 is based on continuous years of full-time service, I am content that the requirement under the third paragraph of article 28.02 to prorate temporary and/or casual service in accordance with article 28.04 of the predecessor collective agreement is a direction to adjust the temporary and/or casual service to reflect equivalent continuous years of full-time service. Accordingly, the third paragraph of article 28.02 requires an adjustment to the actual temporary and/or casual hours to reflect equivalent continuous years of full-time service. To the extent that there may be practical difficulties in ascertaining actual temporary and/or casual hours, the parties are left to resolve these difficulties. Having regard to all of the foregoing, the severance calculation for part-time service is to be based upon scheduled part-time hours adjusted to a full-time equivalent whereas the severance calculation for casual and/or temporary service is to be based on actual casual and/or temporary hours adjusted to a full-time equivalent. I remain seized in the event of any difficulty with respect to the implementation of this award. Dated this 21 st day of December 2005 in the City of Toronto. Kevin Burkett |