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HomeMy WebLinkAbout1987-1635.Walls.97-03-13.!wL;&$Rg I.4 CWJRONNE COMMISSION RkGLEMENT DES GRIEFS ,&I DUNDAS STREET WESI; SUITE 2100, TORONTO ON Lf5G 728 IBO, RUE CUJNDAS WEST BUBEAU .?,W, TORONTO (ON) MSQ IZB BETWEEN BEFORE FOR THE GRIEVOR FOR THE EMPLOYER BEARING TELEP,,ONE,&&HONE : (416) 326-1388 FACSIMILE,T~LtCOPIE : (416) 326-1396 GSB # 1635/87 OPSEU # S7R92 IN THB NATTBR OF AN ARBITRATION Under TEN CROWN NNPLCYEBS COLLECTIVE BARGAINING ACT Before THE GRIBVANCB SBTTLBNBNT BOARD OPSEU (Walls) . - and - Grievor The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer B. Fisher Vice-Chairperson P. Lukasiewicz Counsel Gowling, Strathy & Henderson Barristers & Solicitors L. Marvy Counsel Legal Services Branch Management Board Secretariat August 19, 1996 November 13, 1996 -2- This case involves a claim by the Grievor that he has not been properly compensated as a result of a reinstatement order of this Board. The essential facts are not in dispute and can be summarized as follows: 1. The Grievor was dismissed on May 28,1987 from his position as a Correctional Officer. 2. In October 1987, as a direct result of his dismissal, the Grievor cashed in his government pension plan and transferred the sum of $13,796.93 to his RRSP. 3. While he was unemployed, the Grievor cashed in $4,999.00 from his RRSP to pay for living expenses, but the remaining money stayed in his RRSP throughout the period he was unemployed. 4. On March 10, 1988 the GSB ordered that the Grievor be reinstated effective his date of dismissal “with full compensation for all lost wages and benefits and no’loss of seniority.” 5. In April 1988 the Grievor was paid his backpay of $31,063.92 less deductions for UIC, Tax, Union dues, etc. -3- 6. In May 1988 the Grievor requested that the Ministry provide him with information regarding the amount of money it would take to restore his pension. The Ministry failed to respond to the Grievor’s request as a result of a bureaucratic mix-up. 7. On February 14,1989 the Grievor commenced a six-month leave of absence without pay so he could explore the possibility of a career change. ,’ 8. In April and May of 1989 the Grievor cashed in another $9,552.00 from his RRSP. 9. On August 14,1989 the Grievor returned to his job as the LOA was over. IO. In December 1991, the Grievor renewed his request for information regarding the buy-back of the pension and completed the necessary forms. He did this because he had learnt that if he did not apply for this buy-back by December 13,1991, he would forever lose his right to do so. 11. On March 22,1993, the Ontario Pension Board advised that the Grievor that to reinstate his pension he would have to pay the original sum of $13,796.93 plus interest of $7,047.16. 12. Shortly thereafter the Grievor commenced repaying the required amounts into his pension plan. 13. If the Grievor had paid back his pension plan contributions immediately after he received his retroactive backpay, the interest cost would have been, as of April 30,1988, only $482.78. ,’ This grievance requests the payment to the Grievor of the sum of $7,047.16, which represents the interest portion of the pension repayment figure. The Grievor claims that if he had not been dismissed he would not have had to cash in his pension and thus he would not have had to pay this interest cost. The Grievor indicated his desire to repay his pension immediately after being reinstated but did not receive the information until 5 years later. The Employer’s first contention was that I had lost jurisdiction to rule on this matter, as the Union had not asked for any claim for lost interest on the withdrawn pension monies at the time of the original hearing. Furthermore, the Employer contended that compensation for this head of damage is not contained in the words “with full compensation for all lost wages and benefits and no loss of seniority.” On the jurisdiction argument, I find that the words used in the award are broad enough to cover a claim of lost interest as in this case. I agree with the lawyer for the Union when he stated that the usual practice in these cases is not to deal with the details of compensation in the primary award, but rather to deal with them after the fact if the parties cannot agree. To do otherwise would greatly prolong the arbitration process, as the whole issue of quantification of damages would have to be litigated at the same time as liability. In my experience, the parties have been able to work out the details of the compensation order in the vast number of reinstatement cases. This adds to the efficiency of the arbitration process, and consequently I would be loath to alter that practice. The jurisdictional argument is therefore dismissed. The Unions primary claim is that the Employer breached.~the award because it took until 1993, a period of 5 years, to provide the Grievor with the necessary information so that he could pay back his pension. Because of that lengthy delay, the Grievor was required to pay an additional $7,047.16 in interest. However, a closer examination of the facts reveals that the Grievor must take responsibility for the bulk of the delay. There is no doubt that immediately upon his reinstatement, the Grievor requested this pension buyback information from both his Superintendent and the Ministry’s Human Resource branch and did not receive the necessary information. However, he made no further attempts to obtain this information after about the summer of 1988 until he again pursued the matter in December of 1991. It seems obvious that the Grievor lost interest in repaying his pension plan in early 1989 when he applied for a one-year leave of absence. In his request for this LOA, he -6- indicated that the reason he was requesting the LOA was so that he could pursue educational training that could lead to a career change. In other words, he was hoping to leave the Ministry and therefore I concluded that he would not be interested in reinstating his pension. However, the Grievor’s plans for a career change did not work out and he returned to the Ministry on August 14,1989. However, he did nothing to follow up on his request for pension information until he heard in late 1991 that he would lose his ability to buy back his pension if the application was not received by December 31,1991. He then pursued the issue again and within a matter of a few weeks, he had located the correct government official and filed the correct forms. I am satisfied that the Grievor initially wished to repay his pension plan contributions once he was reinstated, but by about the fall of 1988 he had changed his mind on this issue as he had decided that he wished to pursue an alternative career path outside the Provincial Government. His interest in repaying his pension was only renewed in late 1991 when he realized that, if he did not act fast, he would lose forever his ability to restore his pension credits. I have no hesitation in saying that, as part of the original reinstatement award, there was an obligation for the Employer to provide the Grievor with information about how to reinstate his pension credits and to do so in a timely manner. It is painfully clear -7- that the Ministry failed to do so in 1988 as a result of a misunderstanding as to who was obtaining the information within the Ministry. However, this did not enable the Grievor to in effect do nothing for 2.5 years and then complain that he has to pay interest on money that in effect is borrowing from the Ministry. Where one party is alleged to be breaching an order of the GSB, it is incumbent upon the aggrieved party to act in a diligent fashion to correct the breach. The Grievor, if he truly was concerned about the delay in receiving information in 1988, could have easily complained to his Union. They would have simply asked the GSB to reconvene to consider the matter. I expect at that time the Ministry would have run around,and obtained the necessary information immediately. If they hadn’t, I would have had no hesitation in ordering them to do within a very tight time frame. Therefore, the bulk of the interest that the Grievor is now required to pay is not as a result of any initial breach by the Ministry, but rather because that Grievor did not pursue his complaint at the relevant time and subsequently changed his mind about the whole idea of repaying his pension credits. However, I do find that a portion of the interest that the Grievor is required to pay is as a direct result of the Ministry’s failure to provide the Grievor with timely information about his pension repayment. I find that a fair and reasonable amount that the Ministry should be responsible for is $1 ,OOO.OO. -8- I therefore order that the Ministry pay the sum of $l,OOO.OO to the Ontario Pension Board to the credit of the Grievor’s interest obligations and that the payment be made no later than April 15,1997. I retain jurisdiction to deal with any issues arising from the interpretation or implementation of this award. Dated at Toronto this 1 3TH day of March, 1997