Calculation of gratuity effectively altered the collective agreement
Elementary teachers in Kingston, Ont., are celebrating after an arbitrator decided retirement gratuity was being miscalculated.
The Elementary Teachers’ Federation of Ontario (ETFO) filed a grievance against the Limestone District School Board after a disagreement arose surrounding a "gratuity wind-up payment" for teachers with less than 10 years of service, otherwise known as the non-vested retirement gratuity.
According to the union, the school board’s calculation of the gratuity via the memorandum of understanding (MOU) effectively altered or amended the collective agreement. The MOU provides for the elimination of old sick leave provisions, which were replaced by a new sick leave plan. The old accumulated sick leave banks were frozen and those teachers who had vested entitlements (10-plus years), were to have their retirement gratuities paid out upon their retirement.
"Vested teachers," those with less than 10 years of service, were entitled to a gratuity payment, which would effectively eliminate their former sick leave banks. As the union saw it, the board had taken it upon itself to pro-rate the minimum years of service factor to be applied to those employees with less than 10 years of service. Therefore, the employer was in violation of the collective agreement.
On the other hand, the school board said the MOU requires that it apply the collective agreement formula to those teachers who would not otherwise be entitled to receive a retirement gratuity. The employer argued the formula, when applied to teachers with less than 10 years of service, results in non-payment.
Because the payment would be less than if the calculation was based on the MOU, the board said it was within its rights because eligible teachers received more than their actual entitlement.
Arbitrator allows grievance
The arbitrator allowed the grievance.
"I find that the intention of the parties was to provide non-vested teachers with a gratuity wind-up payment," said arbitrator John Stout.
"The applicable calculation for payment in these circumstances is the formula provided under the MOU."
"What is peculiar about this situation is the fact that the MOU was not negotiated by these parties and was intended to be applicable to various local school boards and ETFO local unions across the province," Stout added.
Reference: Limestone District School Board and the Elementary Teachers’ Federation of Ontario. John Stout — arbitrator. Vince Panetta for the employer, Howard Goldblatt for the union. Sept. 30, 2015.
