HomeMy WebLinkAbout2007-3893 Lalande 08-10-28 Decision
Commission de
Crown Employees
Grievance
règlement des griefs
Settlement Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
2007-3893
GSB#
2008-0628-0002
UNION#
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Lalande)
Union
- and -
The Crown in Right of Ontario
(Ministry of Health and Long -Term Care)
Employer
BEFORENimal V. Dissanayake Vice-Chair
FOR THE UNIONDonna Walrond
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYERKylie Humphreys
Employee Relations Consultant
Ministry of Health and Long-Term Care
TELECONFERENCE:October 23, 2008.
Decision
[1] The instant grievance dated February 21, 2008 was referred to me
pursuant to the Mediation/Arbitration procedure set out in article 22 of the
collective agreement.
[2] The grievor, Ms. Joanne Lalande, had filed a grievance dated January
22, 2007 claiming discrimination in contravention of article 3.1. (GSB file #
2007- 0100).
[3] By Minutes dated September 7, 2007, the parties settled the grievance.
The terms of the Minutes of Settlement included, inter alia, the following
provisions:
2. The parties agree that the Employer will pay the Grievor the
amount of $2500.00 (gross amount) less statutory deductions as
pain and suffering in the resolution of this grievance.
6.This memorandum of settlement constitutes full and final
settlement of all matters which were or could properly have been
raised in the above noted grievance. The parties agree and
acknowledge that they have not made any verbal or other
agreement beyond what is contained in this written settlement.
[4] In implementing the terms of the settlement, the employer made
statutory deductions from the amount of $2500.00 referred to in paragraph
2. In the instant grievance, the grievor claims that thereby the employer
breached the terms of settlement.
[5] The union pointed out that that paragraph 2 of the minutes explicitly
states that the amount of $2500.00 is payable ?as pain and suffering?. It is
submitted that as a matter of law, damages for pain and suffering are not
subject to statutory deductions. Therefore, the employer breached the
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settlement by failing to comply with its undertaking to pay the grievor the
amount of $2500.00 as damages for pain and suffering.
[6] The employer relied on a letter dated July 20, 2007 it had sent to the
union in relation to the original grievance. It sets out the employer?s
reasoning that the grievor could have used her vacation credits to top up her
sick pay, and that the grievor?s total claim under the grievance was
$1894.09. The letter concludes with the sentence ?Therefore, I am hopeful
this grievance can be considered resolved.?
[7] The employer submits that while the grievor?s losses were calculated
to be $1894.09, it agreed to pay $2500.00 because it was the employer?s
intention to make statutory deductions from the amount paid. It is pointed
out that paragraph 2 of the settlement explicitly states ?less statutory
deductions?.
[8] Paragraph 2 of the settlement as drafted contains an internal
contradiction. On the one hand, it contemplates that the amount of
$2500.00 is paid as damages for pain and suffering. As a matter of law,
such damages are not subject to statutory deductions. On the other hand,
however, the paragraph also states that the payment is ?less statutory
deductions?.
[9] In all of the circumstances, I conclude that the grievance must
succeed. I do not doubt that in arriving at the amount to be paid in
settlement of the grievance, the employer would have considered the
grievor?s entitlement for sick time top up and the statutory deductions
applying to the sum. However, there is no evidence that the union or the
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grievor agreed to that method of calculation. In fact, the evidence is that the
union refused to settle on the basis of the proposal contained in the
employer?s letter. The only basis of the settlement was the terms of the
Minutes of Settlement executed on September 7, 2007. Paragraph 6
explicitly states that.
[10] The parties have executed minutes which clearly provide for damages
for pain and suffering in the amount of $2500.00. That is the term the
union agreed to in executing the settlement. The union has not agreed to
any payment as compensation for loss of sick time. Had the employer
proposed to the union its own reasoning, i.e. that the amount agreed to
represents the grievor?s claim for top-up (less statutory deductions), the
union would have had to decide whether it would settle on that basis. The
union, however, did not have that opportunity. While the minutes also refer
to ?less statutory deductions?, those deductions contemplated are from a
payment of damages for pain and suffering. Such a deduction is contrary to
law and must be disregarded.
[11] For the foregoing reasons, the grievance is allowed. The employer is
directed to pay to the grievor the sum deducted from the amount of
$2500.00 as statutory deductions. I remain seized in the event of disputes
as to implementation.
th
day of October 2008.
Dated at Toronto, this 28
________________________
Nimal Dissanayake
Vice-Chair
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