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HomeMy WebLinkAbout2017-0402.Botari.20-12-02 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#2017-0402 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 (Botari) Association - and – The Crown in Right of Ontario (Ministry of Labour, Training and Skills Development) Employer BEFORE Ian Anderson Arbitrator FOR THE ASSOCIATION Marisa Pollock Goldblatt Partners LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING November 30, 2020 - 2 - Decision [1] Did the parties enter into a binding settlement on October 30, 2020? That is the issue determined by this decision. Background [2] Mr. Botari was discharged for cause from his employment on March 16, 2017. A complaint challenging this decision was filed on his behalf and advanced through the arbitration process. By decision dated November 22, 2019 (the “Decision”), I ordered him to be reinstated with no loss of earnings or seniority and remained seized with respect to any disputes concerning the quantification of his losses. [3] The quantification of Mr. Botari’s losses proved challenging, in part because of the fact that he had become disabled and unable to work during the period of his dismissal. The date on which he should be considered disabled affected the calculation of his losses: prior to the date of the disability, he would be entitled to his salary; subsequent to the date of disability he would be entitled to benefits under first the Short Term Sickness Plan and then the Long Term Income Protection. The parties disagreed as to which date should be used for the purposes of these calculations. [4] The date of disability also affected the number of vacation credits to which Mr. Botari was entitled. This dispute was compounded by a disagreement between the parties as to whether or not the restriction on the number of vacation credits which can be carried over from one year to the next would apply to reduce those vacation credits. [5] Article 30.13 of the collective agreement gives an employee who qualifies for payments under the Long Term Income Protection Plan the right to be paid out any unused vacation credits. Mr. Botari wished to exercise that right. Because of the lack of agreement on the date of disability and the number of vacation credits owing, the Employer declined to pay out his vacation credits. [6] The parties engaged in discussions over a number of months, some with my assistance as a mediator and some without, in an attempt to resolve these and other issues. A further mediation session was scheduled for October 30, 2020. The Employer made an offer to settle for $196,220.66 in salary (gross) in advance of the mediation session. On October 27, 2020, counsel for the Association sent counsel for the Employer an email which read in substantive part: “could you - 3 - please provide us with the employer’s calculations of ken’s accumulated vacation credits to date?” The Association states the email was sent to assist it and Mr. Botari in considering the Employer’s offer. The Employer responded on October 27, 2020 by providing a table prepared by Minerva Papasin setting out “vacation credits” for Mr. Botari. That table shows various amounts and adjustments for the years 2017, 2018 and 2019. It gives the “balance as of the end of the year” for 2019 as “51.66”. There appears to be no dispute that this number is the number of vacation credits owing on the Employer’s view of the associated legal issues. There is a comment in relation to this number which reads “For pay-out”. [7] On October 30, 2020, the parties and Mr. Botari appeared to conclude the settlement which is in dispute through an exchange of emails. The originating email from counsel for the Association was sent at 6:10 PM and read: the parties, including ken botari have agreed on the attached settlement except for paragraph 2, where the numbers are blank. The employer is going to provide AMAPCE0 with the numbers by nov 6 2020 and AMAPCEO will review them and respond by November 13. In the event of a dispute on the numbers in paragraph 2, the dispute will be determined by Ian Anderson on November 30, 2020. Please confirm your agreement with the above. Counsel for the Employer responded to this email at 6:19 PM, stating simply: “Agreed.” [8] The attached settlement document reads as follows: MEMORANDUM OF AGREEMENT BETWEEN: ASSOCIATION OF MANAGEMENT, ADMINISTRATIVE AND PROFESSIONAL EMPLOYEES OF ONTARIO (“AMAPCEO”) - AND - THE CROWN IN RIGHT OF ONTARIO (AS REPRESENTED BY THE Ministry of Labour, Training and Skills Development) (“the Employer”) -AND- KEN BOTARI WHEREAS Ken Botari was placed on paid suspension on March 13, 2015, and terminated from employment on March 16, 2017; - 4 - AND WHEREAS Ken Botari was reinstated to employment with full compensation effective November 22, 2019 by decision of arbitrator Anderson (GSB#2017-0402) (the “Decision”), but was unable to return to work due to disability as a result of an accident that occurred on February 8, 2019; AND WHEREAS the Employer reinstated Ken Botari’s salary effective November 22, 2019 notwithstanding that he was unable to return to work; AND WHEREAS Ken Botari was retroactively placed on STSP effective February 8, 2019; AND WHEREAS Ken Botari’s LTIP application was approved retroactive to August 20, 2019 and Ken Botari ceased receiving his full salary with his last paycheque covering the period ending July 26, 2020. AND WHEREAS the Parties wish to settle all issues around compensation, including vacation, COC and any other kind of credits owing as a result of the Decision; NOW THEREFORE the Employer, Ken Botari and AMAPCEO agree as follows: 1. That the gross amount of salary to be paid to Ken Botari due to his reinstatement is $196,220.66 which represents the reconciliation of the following monies and payments/overpayments: 1. the salary calculated for the period March 17, 2017 to February 7, 2019 is $214,144.76, subject to b) and c) below; 2. STSP owed for the period February 8, 2019 to August 19, 2019 (including COC top-up at full salary) is $58,375.41; 3. an overpayment of salary for the period November 22, 2019 to July 26, 2020 (a period retroactively attributed to LTIP) is $76,299.41; 2. Subject to being authorized by law , the Employer will pay to Ken Botari the gross amount set out in paragraph 1 ($196,220.66) in salary, allocated as follows: • [$ ] gross will be allocated to the 2017 tax year • [$ ] gross will be allocated to the 2018 tax year • [$ ] gross will be allocated to the 2019 tax year WE NEED TO GET THESE AMOUNTS 3. Subject to being authorized by law, the Employer will request that Canada Life allocate the LTIP monies paid out in 2020 in respect of 2019 to the 2019 taxation year. 4. In addition to deductions required by law, the employer will deduct from each of the - 5 - amounts listed in paragraph 2(a),2(b) and 2(c) the employee pension contributions associated with the amount. The Employer will remit the employee pension contributions, along with its own pension contributions associated with the amount, to the Ontario Pension Board (the “OPB”). The Employer will make best efforts to remit the employer and employee pension contributions within 75 calendar days of the execution of this Agreement; 5. As a result of the fact that the Employer paid full salary with normal deductions in the period November 22, 2019 through July 26, 2020, the period in respect of which Ken Botari ultimately received LTIP, the Parties acknowledge that a reconciliation with respect to statutory withholdings for that period will likely result; The Employer will make all necessary adjustments to taxes, EI and CPP withheld and pay Ken Botari all amounts owing. The Employer will make best efforts to pay these amounts within 75 calendar days of the execution of this Agreement. 6. As a result of the fact that the Employer paid full salary with normal deductions in the period November 22, 2019 through July 26, 2020, the period in respect of which Ken Botari ultimately received LTIP, the Parties acknowledge that a reconciliation with respect to pension deductions and contributions will need to be done. The Employer will provide the OPB with all necessary information and paperwork in a timely manner in order to ensure that Ken Botari is reimbursed for all pension contribution overpayments made. The Employer will make best efforts to make all necessary employee and employer contributions to the OPB within 75 calendar days of the execution of this Agreement. 7. The Employer will complete all necessary paperwork for CRA or Ken Botari including any necessary amended or original T4s, Forms T1198, or letters as the case may be in a timely manner and in accordance with CRA requirements, to effect the allocations noted in paragraph 2 and to ensure all necessary adjustments to overpayment of taxes, or other charges or deductions are made. 8. Ken Botari is responsible for overpayment amounts, if any, owing to EI as a result of this settlement or any other insurance/benefits carrier. Ken Botari releases the employer from and indemnifies the employer in respect of any and all claims that may be made against it in connection with the payment of any overpayment amount. 9. The Employer will make best efforts to pay the $196,220.66 in salary within 75 calendar days of the execution of this Agreement. 10. It is understood that none of the monies or credits under this Settlement will have any impact on LTIP payments made to Ken Botari by Canada Life. For clarity, no credits or monies will cause a reduction in the LTIP payments. If necessary, the Employer will - 6 - instruct Canada Life to this effect. 11. With the exception of the claim for bargaining overtime, the Parties agree and acknowledge that this Agreement fully and finally settles all matters with respect to the reinstatement Ken Botari, and further that Ken Botari has no outstanding claims or grievances of any kind up to and including the date of this Agreement . Furthermore, the Parties agree that other than what is set out in this Agreement, no other monies or benefits of any kind are owed to Ken Botari 12. Arbitrator Anderson remains seized to deal with any issues arising out of the interpretation application or administration of this Agreement. Employer Date AMAPCEO Date Kenneth Botari Date [9] As is apparent, the gross amount of salary payable to Mr. Botari pursuant to the Memorandum of Settlement is the amount which had been offered by the Employer prior to the October 30, 2020 mediation session. [10] On November 3, 2020, counsel for the Association sent counsel for the Employer a reply to the Employer’s October 27, 2020 email setting out Mr. Botari’s vacation entitlements. The Association’s email reads: We are writing to ensure that there has been no misunderstanding re minerva’s email below. AMAPCEO’s understanding is that independent of the settlement relating to monies lost as a result of the termination, 51.66 hours [sic] are to be paid out to ken as per his election pursuant to article 30.13 arising out of his LTIP claim, and minerva’s indication below that these hours [sic] are “for pay-out”. Could you please confirm? - 7 - [11] The Employer declined to provide this confirmation, taking the position that the settlement included all entitlements. The hearing on November 30, 2020 was devoted to hearing argument with respect to this issue. Arguments [12] The Association argues that it reasonably understood the October 27, 2020 exchange of emails to mean that 51.66 days of vacation credits were going to be paid out pursuant to Mr. Botari’s election under Article 30.13 independently of the amounts addressed by the “Memorandum of Agreement”. The Association states its assessment of the Employer’s offer was based on this understanding. The Association further states that on its analysis of the strengths and weaknesses of the various legal and factual issues related to the compensation owing to Mr. Botari, the Employer’s offer was a good deal if Mr. Botari was also going to receive the 51.66 days of vacation credits and a bad deal if it did not. The Association concedes there is a reference to vacation in the recitals of the Memorandum of Agreement, but notes that vacation pay is not otherwise expressly addressed. Therefore the Association argues it reasonably concluded that Mr. Botari would be separately paid his vacation credits pursuant to Article 30.13. The Association concludes by stating that it would not have entered into the Memorandum of Agreement had it provided otherwise. In the result, the Association argues, the Memorandum of Agreement is not an enforceable settlement. [13] The Employer responds that it does not know what the Association or Mr. Botari were thinking when they agreed to the Memorandum of Agreement, but for its part it wanted a global deal which resolved all outstanding issues as between the parties and Mr. Botari. The October 27, 2020 email did not amount to a representation by the Employer that Mr. Botari would be paid out 51.66 days of vacation credits. Rather it represented the Employer’s calculation of how many days would be owing to Mr. Botari if the Employer’s positions with respect to the relevant disputed issues were to prevail. The Employer notes the recitals to the Memorandum of Agreement specifically states: “the Parties wish to settle all issues around compensation, including vacation, COC and any other kind of credits owing as a result of the Decision”. Paragraph 11 makes it crystal clear that no claim for any other monies or benefits of any kind remains for Mr. Botari, with the express exception of “the claim for bargaining overtime”. Had the parties intended to exclude a claim for vacation credits under Article 30.13 they could have similarly done so. In the result, the Employer argues the Memorandum of Agreement is an enforceable settlement. - 8 - Analysis and Decision [14] There is no suggestion that the Employer was aware of the assumption by the Association and Mr. Botari that Mr. Botari’s claim for vacation credits under Article 30.13 was not subsumed by the Memorandum of Agreement. While it may have been reasonable for the Association to assume those vacation credits would be independently paid, the recitals of the Memorandum of Agreement state that it settles all issues relating to compensation including vacation, and paragraph 11 states that all other claims are settled and no monies other than what is set out in the Memorandum of Agreement are owing to Mr. Botari. Any payment related to the vacation credits is subsumed by that express language. The Association’s October 30, 2020 email sent at 6:10 PM constitutes an offer to settle by itself and Mr. Botari on the basis of that language and the Employer’s reply email at 6:19 PM constitutes acceptance. In the result, the Memorandum of Agreement is an enforceable settlement between the parties. [15] The parties are directed to contact the Board within one week of the date of this decision to advise whether they have been able to reach agreement on the allocation of the gross amount of salary contemplated by paragraph 2 of the Memorandum of Agreement. In the absence of such an agreement, the Board is to schedule a conference call as soon as possible so that I may hear submissions and determine the appropriate allocation. Dated at Toronto, Ontario this 2nd day of December, 2020. “Ian Anderson” Ian Anderson, Arbitrator