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HomeMy WebLinkAbout2011-2859.GAM.19-11-26 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-2859; 2011-2860; 2011-2861 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN The Association of Management, Administrative and Professional Crown Employees of Ontario (GAM) Association - and – The Crown in Right of Ontario (Ministry of Health) Employer BEFORE Bram Herlich Arbitrator FOR THE ASSOCIATION Kelly Doctor Goldblatt Partners LLP Counsel FOR THE EMPLOYER Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING July 24, 2019 and (by teleconference) on November 15, 2019 - 2 - Decision [1] GAM is the complainant in this case. I will refer to her as the “complainant” or the “grievor”. On August 11, 2017, I issued a decision (the “main decision”) in this matter. It was lengthy and detailed, outlining events that transpired over several years. Those facts are set out in the decision and I do not intend to repeat them here, except to the limited extent that may be necessary. Accommodation issues were the major theme of the award, arising, broadly, in two contexts. In the first, the complainant had longstanding ergonomic requirements, which the employer, at least up until the time period in question (commencing in August 2010), had successfully accommodated through the provision of ergonomic devices, equipment and setup. The second accommodation issue pertains to a respiratory condition the complainant developed after exposure to chemicals used in carpet cleaning performed at her workplace. In the interest of clarity (though at the risk of some oversimplification), the grievances, to the extent they pertained to the former, were largely allowed, and, to the extent they pertained to the latter, were largely dismissed. [2] In my decision, I remained seized with respect to the quantum of damages (both economic loss and other) owing as a result of my award. The summary of my findings at the end of the award (at para. 266) provided as follows: 1. For the period August 18, 2010 to October 7, 2010, I find that the employer breached its collective agreement and statutory obligations to provide the ergonomic accommodation the complainant required. The grievor is to be made whole for any economic losses suffered. In addition, the grievor is entitled to an award of damages for her non-tangible losses, including mental distress and injury to dignity 2. For the period from October 8, 2010 to the commencement of the period of total disability (November 30, 2010) and to the conclusion of the period of total disability (January 18, 2012), I have found that the employer did not breach any contractual or statutory obligation to accommodate the grievor. For the period leading up to the commencement of total disability, it was not established that the grievor was in need of any accommodation (except the ergonomic accommodation which was available to her at 80 Queen). And for the duration of the period of total disability, no accommodation was required or even possible (even if it was sought at the time) as the grievor was incapable of performing the duties of her position (the only position ever sought by way of accommodation throughout our narrative). I have found, however, that during this period (up to the commencement of receipt of - 3 - LTIP benefits) the employer, despite maintaining the grievor on regular payroll until early March 2011, improperly withheld its approval of ST SP. The grievor is to be made whole in respect of any losses she may have suffered as a consequence during the period up to May 30, 2011. The parties will perform the necessary accounting. I shall remain seized should they encounter any difficulties. 3. For the period from the end of total disability (January 18, 2012) until the grievor’s return to work (May 27, 2013), I have found that the employer failed to properly accommodate the grievor in failing to facilitate her return to work (whether at 80 Queen or at an alternate location or from the grievor’s home) between January 18, 2012 and July 17, 2012. The grievor is entitled to be made whole and to be compensated for any losses she may have suffered during this period. This entitlement is subject to my earlier comments regarding the shared responsibility of the employer and the grievor with respect to effecting her return to work. In addition, the grievor is entitled to an award of damages for her non-tangible losses, including mental distress and injury to dignity. 4. For the period from May 27, 2013 to September 27, 2013 (a period governed by the parties’ interim agreement as set out in their agreed facts), I am satisfied that the employer failed to properly implement the terms of the parties’ agreement and failed to provide the grievor with the ergonomic accommodation she required. There was no claim for any economic loss for this period. However, the grievor is entitled to an award of damages for her non-tangible losses, including mental distress and injury to dignity. 5. With respect to the grievor’s request for compassionate transfer, I am satisfied that the employer’s handling of the matter, was a breach of both the collective agreement and Human Rights Code. However, I am also satisfied that no f urther remedial response beyond this declaration is warranted. 6. With respect to requests for an alternate work arrangement, specifically that the grievor ought to have been permitted to work from home, I have found that the employer did not breach its contractual or collective agreement duty to accommodate. I have found, however, that the employer breached its obligation to properly consider the request under Article 47.1 of the collective agreement. However, I am also satisfied that no further remedial response beyond this declaration is warranted. [emphasis added] [3] While certain residual implementation issues remain (one of which I will shortly address), the parties, in a Memorandum of Agreement (“MOA”) executed in March 2019, have resolved all issues of damages as compensation for economic loss. This portion of this award deals with the outstanding issue pertaining to the quantum of damages to be awarded in respect of non-tangible losses, including mental distress and injury to dignity. - 4 - [4] I begin by delineating what is and is not in dispute in respect of this issue. First, there is no dispute that some damages are to be awarded. And although neither party proposed a specific total amount of such damages to be awarded, they each offered what they viewed as the reasonable range, given the facts of the case. The union asserted that the appropriate range for the total amount would be between $15,000 and $35,000; the employer submitted that the caselaw would support a total amount between $10,000 and $20,000. [5] But while these monetary assessments display a gap between the parties, there is a further gap which is also significant. There is no dispute between the parties that the concluding sentence in each of items #1 #3 and #4 (from para. 266 of the main award) set out above, mandates the issuance of damages in respect of non-tangible losses flowing largely (though not exclusively) from the employer’s failure, at different times, to provide the complainant with the ergonomic accommodation she required. There is equally no dispute that items #5 and #6 above do not require any consideration at this stage as they do not mandate the award of any such damages. The parties’ agreement ends there. The union asserts that there is further employer conduct which should be assessed for an award of damages for non-tangible loss. [6] In particular, the union points to two further aspects of my award. First, it points to the period immediately following the issuance of the Air Quality (AQ) report on September 30, 2010. The complainant had been at work (in alternate locations) up to that point. But the employer was remiss in failing to provide all the necessary accommodation at those alternate locations. Once the AQ report was issued, the employer took the position that the complainant could and ought to return to her home location, a proposition I largely accepted as sound. However, I did find that the employer’s almost instantaneous directions to implement its new position were somewhat precipitous. I agree with the union that the employer’s conduct here (detailed somewhat more fully at para 85 of the main award) contributed to my finding (in item #1 above). However, I do not view this as a separate and distinct item for which the quantum of damages is to be assessed. It is simply part of the period and conclusions encapsulated in item #1. - 5 - [7] I cannot say the same of the union’s second proposed additional item. Here, the union points to the employer’s conduct in respect of approval of STSP benefits. These are events which would fall, temporally, within item #2 (in late 2010 and early 2011 – see paragraphs 145-149 of the main award). There is no doubt that I was critical of the employer in regard to these events. And, undoubtedly, the payment of full salary rather than the STSP benefits that ought to have been paid at the time, coupled with a threat to not approve the STSP benefits which were not being paid, all in relation to a period during (a large portion of) which the complainant was found (but not until March 2015) to be entitled to LTIP benefits was a clear foreshadowing of the remedial accounting headaches the parties were to encounter. But my conclusion in respect of this period (see item #2) was limited to insuring that the complainant did not suffer any economic loss as a result of the employer’s machinations. The union suggests that my use of the phrase “the grievor is to be made whole in respect of any losses” opens the door to the quantification of damages for non-tangible losses. I disagree. The three specific areas where such damages are to be quantified were clearly identified as such in items #1 #3 and #4. In that context, the award of such damages is not otherwise to be inferred. [8] Thus, with respect to the areas the employer says the union has improperly added to our consideration, I am satisfied that the first already forms part of item #1 but that the second does not figure in my award as conduct or events giving rise to damages for non-tangible loss. In other words, the union’s proposed range of damages is, to some extent, over inflated as it presumes some damages I have found are not to be awarded. [9] I turn briefly to the recognized governing principles applicable to the award of these types of damages. In Arunachalam and Best Buy Canada Ltd. et al. 2010 HRTO 1880, the Human Rights Tribunal of Ontario offered the following (at para. 46 et. seq.): Monetary compensation for injury to dignity, feelings and self -respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. Harm, for example, of being discriminatorily denied a service, employment opportunity, or housing is not just - 6 - the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects. As noted by the Supreme Court of Canada in considering damages for breaches of the Canadian Charter of Rights and Freedoms in Vancouver (City) v Ward, 2010 SCC 27 (CanLii) at para. 27: Compensation focusses on the claimants personal loss: physical, psychological and pecuniary. To these types of loss must be added harm to the claimant’s intangible interests. In the public law damages context, courts have variously recognized this harm as distress, humiliation, embarrassment, and anxiety… … The Tribunal’s jurisprudence … has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self - respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination… The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect. The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. [10] I note as well that the Tribunal offered the following at para 51: Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious. Of course there will always be an element of subjective evaluation in translating circumstances to dollars, but the Tribunal has a responsibility to the community and parties appearing before it to ensure that the range of damages based on given fact is predictable and principled. [11] While the Tribunal expresses a salutary view, a reading of cases quantifying these types of damages discloses that the exercise may be more art than science. - 7 - [12] Indeed, a reading of the cases referred to by both parties (I see no immediate need or utility in reviewing these cases – each has its own unique facts easily distinguishable from those here under consideration) may assist in establishing the very broadest of parameters of reasonable damages. But it is, of course, the facts of any particular case which must be considered in assessing these damages. [13] In the present case I have considered all of the following factors (including the union’s somewhat inflated claim referred to earlier). [14] The employer has, during at least two different periods (#1 and #4), clearly breached its obligation to accommodate the complainant with respect to her established ergonomic requirements. This occurred in the August to October 2010 time period (#1) and was then repeated some three years later (#4). [15] Although the same failure to accommodate features somewhat in item #3, the extent is less certain. The complainant presented herself as able to return to work in January 2012. I have already set out, in para 199 of the main award, what, in my view, ought to have happened. However, things unfolded in a manner not entirely untypical of the conduct of the employer and the complainant generally in this matter. There is shared responsibility for the failure of that effort. I cannot lose sight of the fact that had the complainant presented the medical information legitimately requested by the employer, things may have unfolded precisely as I outlined in Paragraph 199. On the other hand, there is no doubt that the employer, likely with a view to improperly deferring the complainant’s return until renovations at 80 Queen St. were complete (thus avoiding any need for a temporary assignment to an alternate location, which would have raised all the ergonomic issues anew) defeated the complainant’s right to return to work with any necessary accommodation. The complainant was (under the main award) to be made whole in respect of this period. But in assessing non-monetary damages, I cannot lose sight of the fact that neither the employer nor the complainant acquitted themselves well over the course of the events in this time period. - 8 - [16] The union advanced a case (in the main litigation) asserting that the employer was in breach of its statutory and collective agreement obligations for the duration and throughout the three year time period in question. The case result did not bear this out. In fact, over the three years in question, the employer was in breach (over three distinct sub-periods - #1 #3 and #4) for a cumulative total of just under one year. Of course the non-monetary damages claimed pertain to the periods when the employer was in breach. On that basis alone, the damages to be awarded are to be far less than they might have been had the employer’s state of breach been consistent and uninterrupted. [17] The former factor is important in assessing the grievor’s claim of emotional distress, which flows, in large measure, from her employment uncertainty and financial vulnerability. I have no doubt that the grievor was vulnerable and stressed throughout the entire period in question. In view of the mixed result in the main case, it is difficult though to view the grievor’s distress and non-tangible losses as flowing (certainly not consistently or exclusively) from the employer’s breach. For over two of the years of the period in question, the grievor declined to return to work, relying, at least in part, on her assertion that the employer was failing to accommodate her disability. That position was, as a general proposition, rejected in the main decision, which found that the employer’s proposed accommodation was reasonable. The grievor was within her rights to claim and seek to have her union litigate her asserted rights. And even if her position was ultimately not entirely vindicated, she ought not to be punished for that exercise. But that is a different matter from (to again oversimplify) allowing her to claim damages from the employer for the anxiety she suffered as a result of her improvident choice. Identifying the employer’s breach or the grievor’s improvident choice as the principal or exclusive causative factor for the stress the grievor suffered is a difficult exercise. Still. there is no doubt that the employer bears some of the responsibility for the stress and anxiety the grievor suffered. [18] This concern can be expressed on the “objective” side of the ledger as well. In evaluating the seriousness of the employer’s misconduct, first, there was no loss of employment here. There were, however, significant periods of absence from work (with concomitant economic insecurity). However, it is now clear that, in large measure, the - 9 - grievor’s absences from work had little to do with the employer’s failure to accommodate. The employer’s failure to accommodate related primarily to periods where the grievor was at work but was wrongfully deprived of her needed accommodation. [19] Having regard to all of the foregoing, to the submissions of the parties, including their identification of what they each thought a reasonable range for damages would be in this case, I am satisfied that the appropriate amount to award as damages for non-tangible losses, including mental distress and injury to dignity is $15,000.00 and I hereby so award. [20] There is one final point to address. The union asked that the employer be required to pay the damages awarded herein within a period of 30 days; the employer requested 60 days to effect the payment. The employer is hereby directed to effect the payment to the complainant within 45 days of the date of this award. *** [21] I turn now to the implementation issues regarding the parties’ MOA. The union initially identified three issues. Two of these, however, will be the subject of some further endeavours of the parties and may yet be finally resolved. If they are not, they may be brought before me, as necessary, for determination. [22] The issue which the parties have asked me to deal with relates to the propriety of the employer having deducted an amount equal to what it refers to as an “overpayment” from the amount it has paid the complainant pursuant to the MOA. [23] Some context first. Everything in this case has proceeded on what might be described as a grand scale. The events dealt with in my award spanned a period close to three years duration, commencing in August 2010. To some extent, the remedial consequences of my award extend beyond that three-year period, in some cases perhaps even approaching the present day. And while the “main” case I have described earlier (as one focused largely on accommodation issues) was in the course of its litigation, another matter between the parties came and went, resulting in a decision (the “LTIP decision”), dated March 12, 2015 (Board - 10 - File 2013-1965) that granted the complainant’s appeal to overturn the denial of LTIP benefits during a period of time that overlapped with the period considered in the main case. [24] Thus, and to perhaps oversimplify somewhat, the parties’ efforts at assessing the quantum of damages owing as economic loss involved a retroactive re-assessment of the complainant’s status and compensation history on a weekly or even daily basis over a period of years. Individual days or weeks that had been treated as sick days or vacation days or leave days or paid leave days or work days or holidays would need to be recast as appropriate and calculations would then need to be made as to monies owing as a result of those corrections. [25] While these matters may, at their core, not be complex, the intensity and volume of details are, no doubt, impressive. I expect that this may be one of the reasons for the delay between the issuance of my award (in August 2017) and the execution of the MOA over a year and a half later. [26] In any event, the MOA the parties ultimately executed is remarkable in a number of respects. It clearly vouches for its assiduous preparation. It is also notable that for a document whose chief goal is to establish the number of dollars that fairly or accurately represents the quantum of damages owing for economic loss, the MOA is but a way station along that route. In fairness, there are some related issues (e.g. pension, tax liability, information exchange) which require more than merely establishing a number. In any event, the MOA comprises some 26 paragraphs and what it does provide is a blueprint, a series of formulae and footnotes to be applied at different times within the period, to facilitate and inform the exercise of quantifying the damages owing. Further detail is unnecessary at this stage. However, one thing the document does not do is establish the total number (or its constituent parts) of dollars to be paid. Notwithstanding its elaborate detail and ostensible ability to produce a number of substantial accuracy, the parties still agreed that the MOA “represents a reasonable compromise to the outstanding salary and credit issues flowing from the Award”. [27] It is, however, paragraph 18 of the MOA which is here at issue: - 11 - The parties agree that if there was an overpayment to GAM during the period covered by this agreement, the overpayment shall be deducted from the amount owing under this agreement. [28] The employer asserts that there has been such an overpayment. A sum of $5384.77 (less deductions) was paid to the complainant in June 2015. The pay stub produced by the employer shows an earnings end date in March 2012 for this payment, made in 2015 (at around the time when the parties were implementing a prior MOS related to the LTIP decision adverted to earlier). The union and the complainant were (so far) unable to confirm that this payment was made or received. However, without prejudice to the union’s right to reopen the matter should they discover that the payment was neither made nor received, the parties agreed that I should proceed on the basis that the payment was made and received. [29] Other aspects of the payment were not disputed. Indeed, there was no real suggestion that the payment was not an overpayment. The payment was made in 2015 after the prior LTIP MOS had been executed but well before the execution of the MOA now under consideration. The payment related to an 8-week period ending in March 2012. This was a period during which (following the necessary revisionist exercises in the wake of one or both of the Board’s decisions) the complainant ought to have been paid three days per week by the employer and two days per week by the insurer. The overpayment in question is a duplication of monies that were paid by the insurer. [30] Thus, there is no dispute that the payment in question was an overpayment, the only question is whether the employer is and was entitled to deduct this overpayment from the monies paid to the complainant pursuant to the MOA. The union says that while remedies may be available to the employer in view of the overpayment, these do not include the right to unilaterally deduct the overpayment from monies otherwise payable under the MOA. [31] The overpayment relates to 2012, it was made in 2015 (while the merits of this case were still being litigated, though after the decision in the LTIP matter had issued). - 12 - In any event, this particular payment was neither identified nor discussed in any of the communications between the parties that led up to the 2019 MOA. I was not advised as to the precise date upon which the employer first advised of the existence of the overpayment and its intention to adjust the final payment to the complainant accordingly. That would have occurred sometime between the date of the final execution of the MOA (March 1, 2019) and the issuance of a cheque payable to the complainant, dated November 8, 2019. It is to be noted that there is no allegation of bad faith levelled at the employer in respect of the timing of its notification of the existence of the payment. In other words this late notification was not part of some deliberate nefarious plan. It was, rather, more in the nature of simple oversight. [32] The union advances two reasons why the employer ought not to be permitted to deduct the overpayment: one technical, one equitable. [33] On the technical side, the union points to the language of paragraph 18 of the MOA which explicitly allows for the deduction of overpayments that may have been made “during the period covered by this agreement”. This overpayment was made in 2015 beyond the time of any of the events under consideration in the award or in the parties consideration with respect to the quantification of damages. I am not persuaded by this argument. [34] First of all, the concept of “the period covered by the agreement” is not one which is defined by the agreement. And there is no unitary period of time explicitly identified as such in the MOA. Rather, there are a series of different periods and individual days in respect of which agreements are noted. In fairness to the union, it might be said that if one were pressed to identify a single unitary period, it might be sensible to identify it as flowing from August 2010 until February 2014, within which time or, perhaps put more accurately, in relation to which time, certain remedial consequences are the subject of the parties’ MOA. But even here, yielding the logical extension of the technical approach, one cannot fail to observe that paragraph 2 of the MOA speaks of retroactive payments to be made for the period August 1, 2010 to present. So, technically, the period might extend to the “present”, i.e. to the date of the execution of - 13 - the MOS, March 1, 2019. And while the notification of the overpayment would still be beyond the “period”, the date of the overpayment would fall squarely within it. [35] In any event, I am not persuaded that the instant question is best resolved through the combat of technical gladiators. Rather, there is a simpler and, in my view, much more appropriate reading to bring to the parties’ settlement. The focus ought not to be on when the overpayment was made or when the union was notified of its existence (on this latter point, unless the union takes up its ability to dispute that the payment was made, there is little reason to suspect that the complainant was unaware of the payment having been made in 2015, even if she may otherwise have lacked pristine clarity regarding all of her employment related income accounting). Rather, what strikes me as essential is what the payment was in respect of. And, in the instant case, there is no dispute that the payment was (mistakenly made/duplicated) in respect of events in 2012, well within the time frame of events addressed by the MOA. This is the approach that is to be preferred. I note, as well, that this is not a case where the employer was attempting to offset damages based on some other debt, unrelated to the issues at hand. The overpayment related directly to the issues and findings that had been dealt with in my award. [36] My conclusion on this point is buttressed by the knowledge that acceptance of the union’s technical approach would clearly result in unjust enrichment for the complainant, a result the parties took some pains to acknowledge was not desirable, and a result that an arbitrator would be unlikely to countenance if asked, more directly, to quantify damages owing under the terms of an award finding liability. [37] Thus, the union’s technical argument is, subject only to the qualification articulated earlier in this award, hereby rejected. [38] The union’s alternative approach, the equitable one, is more readily disposed of. - 14 - [39] Mirroring an estoppel argument, the union asserts that it would be unfair to permit the employer, after the parties had concluded their negotiation of the MOA, to rely upon an overpayment not previously brought to the union’s attention. [40] In this regard, it is true that there were discussions between the parties in which some other overpayments were identified. But through inadvertence and without any nefarious motives, the employer only later identified a further overpayment. Given the volume of data to be assessed and in a context where there had already been a prior assessment and payment of damages in the context of the LTIP decision, it is unfortunate but less than entirely surprising that the instant overpayment avoided more timely scrutiny. But, as employer counsel submitted, it is difficult to see how this state of affairs resulted in any detrimental reliance on the union’s part. [41] In this context, I note, once again, that the MOA did not quantify damages. Rather it provided a blueprint for their calculation with a recognition that overpayment was to be avoided. Even if a more timely disclosure of the overpayment might have affected the negotiations between the parties, it is difficult to see how that would, should or could have resulted in an agreement that provided the complainant with the unjust enrichment that a double payment would be. [42] Thus, the union’s equitable argument is rejected as well. (Subject again to the qualification earlier identified) I am not persuaded that the employer violated the terms of the MOA in deducting an amount equal to the overpayment from the monies paid to the complainant. [43] In summary, I have concluded that: (a) The employer, within 45 days of the date herein, is to pay the complainant the sum of Fifteen Thousand Dollars ($15,000) as damages for her non-tangible losses, including mental distress and injury to dignity. - 15 - (b) I have found and hereby declare that (subject only to the qualification earlier expressed) the employer was not in breach of the parties’ MOA when it deducted the “overpayment” considered in this matter from the monies paid to the complainant. Dated at Toronto, Ontario this 26th day of November, 2019. “Bram Herlich” Bram Herlich, Arbitrator