HomeMy WebLinkAbout1991-0391.Mitchell.91-10-23" b~';/~. 'V,"' ': ' ', , CROWN EMPLOYEES DE L'ONTARfO
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ZN THE I~TTER OF ~ ~RBZTi~TZON
Onde;
THE CROTN F~PLOYEE$ COLLECTZVE B~G~ZNZNG ~CT
Before
T~ GRZE~C~ 8ETT~~
BE~EN
0~SEU
Gr~evor
- and-
The Cro~ in Right of Ontario
(Minist~ of Correctional Se~ices)
Employer
BEFOg: J. Samuels Vice-Chai~erson
W. Rannachan Me, er
G. Milley Me,er
FOR THE C. Dassios
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE A. Purchnicki
EMPLOYER Grievance Administration officer
Ministry of Correctional Services
HEARING August 29, 1991
The grievor is a Correctional Officer 2. In mid-1988, for a short
period, he acted as a CO3. His pay cheques were increased to reflect his
additional responsibilities. When this acting position came to an end, and
he returned to the duties of a CO2, payroll was no_._~t informed of the change,
and his pay cheques continued at the increased level for about nine months.
He was overpaid about $2500 l~ross (which came out to $1500 net in his
take-home pay).
In April i989, the Ministry asked the gr,~e,tor to repay the
overpayment. After some discussions, in ,October 1989, he received a
memorandum from the Office Manager at his institution, which read:
I would like to bring to your attention the
outstanding balance of $1554.4!, which you owe
from previous cash advances. It would be greatly
appreciated if you could make arrangements to
pay the whole amount or pay it in installments. ' If
no arrangement is made to repay the loan, Main
Office will make automatic deductions from your
pay commencing November 9, 1989.
Except for the dollar amount and the date at the end, this memorandum
was a preprinted form.
The grievor told the Office Manager that he was content to repay the
balance shown ~ 15 deductions of
~, ~,,~ each,
But this is not what happened. When 'the payroll department got the
message about the $100 deduction per pay cheque, they treated each $100
as a payment on the gross amount overpaid ($2500), and mad,: 2_~5
deductions. Payroll treated the $100 each 'time as a deduction from the
grievor's gross pay, which meant that he paid less income tax, etc., at each
pay period. Thus, given that the regular deductions from the grievor% pay
cheques were reduced, the ne_._[t deduction from each pay cheque turned out
to be around $50. After all the dust had settled, the grievor's repayment of
3
the rogrg.~, amount owing ($2500) wound up as about $1500 net over 25 pay
cheques.
When the grievor discovered that deductions were still being made
after the 15 weeks he expected, he made enquiries. When he learned that,
in fact, there were 25 $100 deductions, rather than the 15 he expected, he
complained and ultimately filed a grievance claiming that the Ministry had
made an unjust payroll deduction. The grievor says that he should not have
to repay more th.an he was asked to repay in October t989.
This case is very similar to Taylor, 1077/89 (Samuels), where the
Board also dealt with a salary overpayment. On page 3 of that award, the
Board set out the law governing this situation:
The law in this situation is fairly clear. Where
money is paid because of a mistake of fact,
generally the receiver must repay the money,
either because this is the equitable thing to do, or
because there is considered to be an implied
promise to repay. However, where the receiver
has materially changed her circumstances as a
result of the receipt of the money,, so that it would
be inequitable to force restitution, this obligation
to repay may be relieved. The authorities in this
area were reviewed extensively by the Supreme
Court of Canada in Rural Municipality of
Storthoaks v. Mobil Oil Canada Ltd. (1975), 55
DLR (3d) 1. And for an example of the
application of the Storthoaks principles in a
context similar to ours, see Re Ottawa Board of
Education and Federation of Women Teachers'
Associations (1986), 25 LAC (3d) 146 (P.
Picher).
Thus, the grievor must repay all the money overpaid, except to the
extent that the amount or manner of repayment is inequitable in all the
circumstances, in which case relief ought to be granted.
4
Here the Ministry failed to give the grievor sufficient inforraation
concerning the amount necessary to make the Ministry whole (in
particular, the Ministry failed to make clear to the grievor the diffi~rence
between what he owed gross and how this would affect his net pay cheque).
The October 1989 memorandum from the Office Manager was misleading
and the grievor made his undertaking to repay (and consequently,
organized his family's finances and special purchases) based on a
misunderstanding caused by the Ministry. In these circumstances, there
was a measure of inequitability in the overall repayment arrangement:s, and
the grievor ought to receive some compensation for this.
5
The amount of compensation duc is not great, and there is no point
in this Board trying to make some precise accounting of the grievor's
losses as a result of the inequitability. We order that the Ministry pay $i00
to the grievor as compensation in these circumstances. Of course, this
amount is akin to a salary payment, and the Ministry will have to deduct
income tax from the payment.
Done at London, Ontario, this 23rd day of October, , 1991.
anuels, Vice-Chairpers~'n
W. Rarmachan..Mem~er
G. Milley, Member