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HomeMy WebLinkAboutParkhill 17-09-08 In the Matter of an Arbitration Between: The Corporation of the County of Frontenac (The “Employer”) -and- Ontario Public Service Employees’ Union and its Local 445 (The “Union”) Re: David Parkhill Grievances-Minutes of Settlement-Implementation Disputes Arbitrator: Brian Sheehan Appearances: For The Employer: Mark Mason – Counsel For The Union: Peggy Smith – Counsel Conference Call – September 5, 2017 1 The Union requested a conference call be conducted with respect to issues that have arisen regarding the implementation of the Minutes of Settlement reached between the parties on January 16, 2017, which resolved a number of grievances involving David Parkhill (the “grievor”). The conference call took place on September 5, 2017. Prior to the conference call, the grievor had forwarded, to my attention, a letter setting out his concerns regarding the issues in dispute. Background Facts The Minutes of Settlement provided for two payments to be made to the grievor. The first payment was the sum of $15,000 as general damages which was due 30 days after the date of the settlement issued on January 16, 2017. It is my understanding the grievor was paid those monies in a timely manner. The second payment was related to the grievor being placed on an unpaid leave of absence from December 11, 2015 until January 16, 2017. To facilitate the grievor being able to make OMERS contributions for that period, the Employer was obligated to provide a letter to OMERS advising that, the grievor had been reinstated but he was unable to work as a Primary Care Paramedic because of his disability and that the Employer did not have suitable alternative work for which he was qualified to perform. There was a delay associated with the Employer providing OMERS with the confirmatory letter as to the grievor’s status. That delay arose, in part, due to a miscommunication between Mr. Mason and the Employer as Mr. Mason was not aware that certain relevant documents that had been forwarded to him were, in fact, in his email inbox folder. The parties were able to rectify that scenario and the relevant documentation was provided to OMERS. Additionally, the grievor’s retirement date was extended from June 1, 2017 to July 1, 2017. The second payment involves a payment of $50,000 less required deductions and any amounts that the grievor had to repay to OMERS for the outstanding contributions owing. That amount, after the required deductions, was in the order of 2 approximately $25,000. That payment was to be made within 30 days of the grievor’s retirement date; therefore, was due as of July 31, 2017. The terms of the Minutes of Settlement further provided that the grievor was entitled to direct his final payment be transferred directly to a RRSP account on the condition that he provided “satisfactory proof to the employer to establish his legal entitlement to do so”. The grievor sought to take advantage of that opportunity. Accordingly, in a timely fashion, the grievor did in fact forward to Mr. Mason his CRA assessment for the 2015 tax year which indicated that the grievor had approximately $62,000 available RRSP contribution room. The Employer raised a concern with Mr. Mason as to the appropriateness of a 2015 tax year assessment given the monies were to be transferred in 2017, and instructed Mr. Mason to seek from the Union as to whether the grievor could provide his 2016 tax assessment; to verify that he currently had the requisite RRSP contribution room. On August 1, 2017, Ms. Smith, on behalf of the grievor, raised with Mr. Mason as to why the settlement monies had not been forwarde d to the grievor’s RRSP account as directed. Mr. Mason then realized that he had not forwarded to Ms. Smith the Employer’s request for the grievor’s 2016 CRA tax assessment. Immediately thereafter, the parties had discussions with respect to endeavouring to resolve the issue. As part of those discussions, Mr. Mason indicated that the Employer would be willing to accept a written declaration from the grievor confirming that he had the requisite RRSP contribution room. The grievor, frustrated by what he perceived as repeated delays caused by the Employer, has apparently refused to provide such a written declaration, as it is his view that the documentation previously provided should be more than sufficient. In recent correspondence to Ms. Smith, the grievor indicated that, given his frustration with the efforts to have the monies paid out into his RRSP account, he seeks to have the monies paid directly to him. Submissions of the Parties During the conference call, Ms. Smith, as she had done throughout this proceeding, forcefully and adeptly advanced the interests of the Union, and more particularly, those of the grievor. Specifically, she asserted that in the circumstances, 3 there should be a substantial award of damages to the grievor considering the repeated undue delays that had arisen with respect to the implementation of the terms of the Minutes of Settlement. The recurring failure on the part of the Employer to act with care and diligence, it was asserted, was, in fact, reflective of a cavalier attitude on the part of the Employer towards the grievor; and that, it was incumbent upon the Employer to recognize the significantly detrimental impact of its actions upon the grievor, given his Post Traumatic Stress Disorder. Ms. Smith further submitted that the Employer should be held to account for its negligence; and that, an acknowledgment by the Employer of certain administrative errors was entirely insufficient to rectify the damaged inflicted upon the grievor. The grievor in his letter expressed the view that the Employer’s “violations of the MOS are intentional, abusive and bullying”. The Employer recognized that certain issues had arisen regarding the implementation of the Minutes of Settlement. Mr. Mason asserted, however, that the Employer and its employees had acted in good faith throughout, and endeavoured to resolve the issues that arose in an expeditious manner. And that it was he, and not the County, that bore any responsibility if certain of those issues had not been dealt with more promptly. With specific reference to the grievor’s request to have the outstanding settlement monies transferred into an RRSP account, Mr. Mason asserted that the Employer’s request that the grievor supply his 2016 tax year CRA assessment was indisputably a reasonable request. The Employer was obligated to ensure that any such transfer was legally permissible and the best available information to confirm that the grievor currently has the requisite RRSP contribution room to allow for such a transfer was the grievor’s 2016 CRA assessment. In this regard, it was suggested that it was difficult to understand the grievor’s reluctance to forward that information. Mr. Mason acknowledged, however, that he failed to forward the Employer’s request for the grievor’s 2016 CRA assessment to Ms. Smith in a timely manner. It was pointed out, however, that upon being advised of the delay, the Employer, in an attempt 4 to resolve the matter quickly, dispensed with the request for the grievor to provide his 2016 CRA assessment, and indicated that it would instead be acceptable if the grievor simply provided a written declaration confirming that he had the requisite RRSP contribution room; yet, the grievor refuses to provide such a simple declaration. Accordingly, it was submitted that there was no basis, whatsoever, in the circumstances, to justify an award of damages to the grievor. Decision The sense of frustration experienced by the grievor associated with the issues that have arisen regarding the implementation of the Minutes of Settlement is acknowledged. It is recognized that the grievor only accepted the Minutes of Settlement with a significant degree of reluctance, and from his perspective his “grievances” against the Employer, for the most part, remained unresolved. Accordingly, the fact that issues subsequently arose with respect to the implementation of the terms of the Minutes of Settlement were, from the grievor’s viewpoint, further proof of the Employer’s hostility towards him. Moreover, the impact of the grievor’s Post Traumatic Stress Disorder no doubt profoundly exacerbates the sense of aggrievement and frustration he has experienced. While in no way minimizing the grievor’s sense of frustration, it is my view, that there is no basis for an award of damages in the case at hand. In this regard, it is a guiding principle of arbitral jurisprudence that an arbitrator’s remedial authority is normally related to the direct economic loss incurred by the successful grieving party. Accordingly, while an arbitrator clearly has the authority to award damages for any distress caused, such an award is generally only appropriate when the behaviour involves bad faith, reckless and/or egregious conduct. In this regard, the Supreme Court of Canada has indicated that punitive damages in an employment context “are restricted to advertent acts that are so malicious and outrageous, that they are deserving of punishment on their own”. Moreover, while arbitrators have recently been more willing to accept that they have the authority to issue damages pursuant to the tort of the intentional infliction of mental distress, a precondition for establishing the tort is that there was “flagrant and extreme conduct”. 5 The delays that have occurred in the implementation of the Minutes of Settlement in the case at hand are, in my view, most fairly characterized as inadvertent oversights; and while not excused, come well short of the outlined behaviour that would warrant an award of damages. It is also noted that, upon being advised of the relevant delays, the Employer made good faith and expeditious efforts to resolve the particular issue in dispute. Accordingly, the request of the Union that damages be awarded to the grievor is denied. The Matter of the RRSP Direction In my view, it was not unreasonable for the Employer to seek up-to-date information regarding the status of the grievor’s RRSP contribution room. In this regard, the Minutes of Settlement expressly provided that the grievor was obligated to provide satisfactory proof to establish his legal entitlement to provide for the tra nsfer of the settlement monies into an RRSP account. However, while the Employer’s request may not have been unreasonable; in the circumstances, it may have been a tad bit over cautious. Since the grievor’s 2015 CRA tax assessment established that he had contribution room of $62,000 and the outstanding settlement monies are approximately $25,000, it would have taken a rather dramatic change in the grievor’s 2016 financial position for him not to have the requisite room. Additionally, as Ms. Smith noted, the Employer has the protection of the indemnification language set out in the Minutes of Settlement, if, for some reason the CRA demands that the Employer remit monies to cover an amount that the CRA was of the view was owing by the grievor. At present, there appears to be a bit of a logjam with respect to finalizing the payment of the outstanding settlement funds to the grievor. To break that logjam, I hereby direct the grievor to advise me by an email (copying in Ms. Smith), by no later than a week from the date of this Award, whether he seeks to have the settlement funds transferred into a RRSP account or have them paid out directly to him. Upon being advised by the grievor, I will forthwith inform Mr. Mason by email as to the grievor’s desired course of action. The Employer will, within a week of my email to Mr. Mason, 6 transfer the settlement funds into the grievor’s RRSP account; or if that option is not chosen, the Employer will pay out the settlement funds directly to the grievor. This Award is issued in Mississauga this 8th day of September 2017. ____________ Brian Sheehan