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HomeMy WebLinkAbout2019-2827.Complainant.21-11-09 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2019-2827 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Complainant) Association - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Marilyn A. Nairn Arbitrator FOR THE ASSOCIATION Marisa Pollock Goldblatt Partners LLP Counsel FOR THE EMPLOYER Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING November 5, 2021 - 2 - Interim Decision [1] This decision deals with preliminary matters. The first relates to the scope of the issues before me. Secondly, there is an issue as to whether to adjourn this proceeding pending the outcome of the hearing of a dispute filed challenging the Grievor’s termination from employment. As this hearing is scheduled to continue on November 23, 2021, the parties acknowledged that a brief written decision was in order. [2] I have been appointed pursuant to Article 32.2.2.2 of the collective agreement between the Crown in Right of Ontario (the “Employer”) and the Association of Management, Administrative, and Professional Crown Employees of Ontario (“AMAPCEO”) to act as the independent third party (“ITP”) member to the parties’ Joint Benefits Review Committee (“JBRC”). [3] The background facts may be summarized as follows. In or about March 2018 an investigator employed by the insurance carrier (the “carrier”) providing benefit coverage pursuant to the terms of the collective agreement began an investigation into whether the Grievor submitted benefit claims and was reimbursed for paramedical services that were not provided. In or about May 2018 the Grievor was advised by the carrier that it considered him indebted to the carrier in an amount of some $66,625 for claims submitted and paid between the years 2012-2017, wherein the carrier alleged that the services had not been provided. In effect, the carrier was alleging fraud on the Grievor’s part. [4] In or about February 2019 the Grievor submitted further benefit claims totalling some $6,212 which the carrier determined to be valid. However, the carrier advised the Grievor that these claims would not be paid but that the amount would be used to offset and reduce the debt that the carrier considered outstanding (the “offset”). [5] In April 2019 the Grievor was suspended with pay pending investigation. The Grievor’s employment was terminated on October 1, 2019 for the making of allegedly fraudulent benefit claims. A dispute was filed challenging that termination from employment and it is proceeding before another roster arbitrator. A number of issues are in dispute in that proceeding, including issues relating to union representation and delay, in addition to any determination as to whether the Employer had just cause to discharge the Grievor from employment. [6] On December 19, 2019, subsequent to filing the termination dispute, AMAPCEO filed this dispute. The email sent to the Employer attached a spreadsheet of claims made between 2012-2017. The 2019 benefit claims were not included. Nor did - 3 - AMAPCEO have details regarding those claims at the time. The cover email refers to the spreadsheet as the “claims denied”. As the Employer (writ large) was aware, the spreadsheet had been relied on to terminate the Grievor’s employment, as setting out the claims which were paid but which were subsequently alleged by the carrier to be fraudulent. [7] AMAPCEO takes the position that it filed this dispute in order to have the issue of the carrier’s right to offset determined. It is AMAPCEO’s position that the carrier does not have the right to unilaterally withhold the payment of valid benefit claims in order to offset an alleged debt to the carrier. It seeks to have that narrow issue determined by this dispute and asserts that that issue can proceed without the need for a determination on the issue of the alleged fraud. The Employer has not taken a formal position on the merits of the offset issue in light of the preliminary issues. [8] In the alternative, AMAPCEO takes the position that I ought to exercise the discretion available to the ITP to adjourn this hearing pending the outcome of the termination dispute, given the asserted potential prejudice to the Grievor by virtue of the different processes. [9] It is the position of the Employer that the dispute as filed does not give rise to any dispute about claims filed in 2019. It notes that only claims relating to 2012-2017 were submitted. It further asserts that the issue of whether the carrier can offset is a policy issue, to be filed in accordance with the regular dispute resolution provisions of the collective agreement. [10] In the alternative, the Employer argues that the issue of offset cannot be determined in the absence of determining whether a fraud was committed. It argued that this hearing ought not to be adjourned, but ought to proceed and consider that factual issue as part of any consideration of the rights of the carrier to offset valid claims. Any finding as to whether a fraud was committed was relevant to the issue of a right to offset and would also be binding on the arbitrator hearing the termination dispute, argued the Employer, asserting that issue estoppel would preclude that arbitrator from again considering whether a fraud had been committed. Greater efficiencies would accrue were that issue to be heard in the context of the JBRC process, argued the Employer, particularly given the fact of multiple preliminary issues in the termination dispute. [11] While the Employer asserted that the ITP has exclusive jurisdiction under the JBRC process to determine issues of eligibility to benefits (citing the decision in OPSEU (Dales) and Ontario (Ministry of Correctional Services), 2001, GSB #1280/00, 1420/00 (Mikus)), it acknowledged that there was concurrent jurisdiction between - 4 - the roster arbitrator dealing with the termination dispute and the ITP to make a factual determination in respect of the allegation of fraud. However, it argued that the ITP had the broader jurisdiction to determine eligibility to benefits. [12] In response, AMAPCEO argued that the Employer was taking too technical an approach to the scope of the JBRC dispute, as the offset issue could only arise in the context of valid claims, those being the 2019 claims. No dispute would have been filed by AMAPCEO regarding the 2012-2017 claims, it argued, as those claims were not denied but were paid. AMAPCEO further argues that any policy issue arises in the context of the Grievor’s individual claims and as such, JBRC properly has the jurisdiction to determine the offset issue, not a roster arbitrator pursuant to a policy dispute. [13] AMAPCEO argued that, in asserting a faster process, the Employer was making assumptions about what rights the Grievor could or could not rely on in the JBRC process compared with the dispute resolution process. Alternatively, the Employer was seeking to circumvent those employee rights by proceeding through the JBRC process, argued AMAPCEO, without consideration of the prejudice to the Grievor. AMAPCEO argued that the ITP has the full discretion to determine the appropriate manner or proceeding having regard to all of the circumstances. Decision [14] Apart from the technical argument based on the ambiguous email sent by AMAPCEO, the Employer’s submissions acknowledge its awareness of the offset issue. The Employer did not suggest that the JBRC dispute was intended by AMAPCEO to deal with the fraud allegation brought by the Employer, as AMAPCEO had challenged that issue through the filing of the termination dispute. While AMPACEO could and should have been clearer in setting out the Grievor’s JBRC claim, there was no evidence of any prejudice to the Employer by the lack of clarity in placing the offset issue before the ITP. [15] It is also the case that the offset issue arises in the context of the individual circumstances of the Grievor. It was not suggested that the Grievor ought to have filed an individual grievance under the dispute resolution provisions of the collective agreement. Further, a policy grievance is not required in order to provide jurisdiction to consider issues of interpretation and/or application of the terms of the collective agreement that arise in the context of determining the outcome appropriate to individual claims. This is fundamentally an individual claims dispute that may have policy implications. As is not unusual, any decision will provide guidance to the - 5 - parties as to the rights of the carrier and this Grievor, and by extension, may provide guidance to the parties in respect of other grievors similarly situated. [16] I am satisfied that the dispute filed by AMPACEO properly relates to the issue of whether the insurance carrier can withhold the payment of valid claims in order to offset that amount against what it considers is an outstanding debt deriving from its conclusion that the Grievor engaged in fraud. [17] The Employer seeks to have the offset issue and the fraud allegations determined as part of the JBRC process, based on arguments of efficiency and the broader jurisdiction of the ITP to deal with benefit eligibility. That presumes the issue of fraud as relevant to the question of whether the carrier can withhold payment of valid claims to offset what it considers to be a debt. Whether relevant or not, the issue of the offset can proceed on the basis of the parties’ agreement to assume that prior payments were improperly received (specifically without considering or making any finding as to whether fraud was committed), solely for the purposes of determining the offset issue. [18] Absent agreement to proceed based on that assumption, this matter will be adjourned pending the outcome of the termination dispute. To the extent that the Employer argues on behalf of efficiency in this process, there is no guarantee that this forum will be any more efficient than the dispute resolution process. Of greater import however is the fact that, to the extent that efficiencies may be achieved, they would occur at the expense of rights available to the Grievor in the context of the termination dispute. [19] The issue in the termination dispute is whether the Employer had cause to terminate the Grievor’s employment. The allegations of fraud are serious and the potential consequences for such a finding are significant. The issue in this dispute is whether the carrier has the right to withhold the payment of funds; funds that have been withheld. Any potential prejudice in delaying this proceeding is to the Grievor. [20] In terms of the fraud allegations, there is a right to a reverse onus in the termination dispute that does not obviously apply in the JBRC process. In and of itself, that right gives priority to the dispute resolution process. There are also potentially substantive preliminary rights being asserted in the termination dispute that ought properly to be heard and determined prior to any consideration of the merits of the fraud allegations. There is significant potential prejudice to the Grievor should the issue of fraud proceed in the JBRC forum as that process would by-pass these rights. (It is not apparent whether those issues could be raised before the ITP, but if so, it renders any efficiency argument moot). In addition, potential remedial issues - 6 - involving the exercise of discretion in the termination dispute warrant the roster arbitrator having the benefit of hearing the evidence relevant to the Employer’s allegations. I recognize, as did the Employer, that the termination dispute could result in no determination being made in relation to the fraud allegations. Should that occur, the parties can raise the issue of the relevance of the fraud allegations to the determination of the offset issue. In summary: [21] Should the parties agree, this matter will proceed on November 23, 2021 to deal with the issue of whether the carrier can properly withhold payment of valid claims to the Grievor in order to offset what it determined to be amounts owing to it. For purposes of that issue, prior payments received improperly would be assumed (but no consideration would be given to, nor any finding made as to the fraud allegations). This deals with the inherent policy issue as to the rights of the carrier, but, depending on the outcome of that issue, may not fully determine the Grievor’s rights with respect to his 2019 claims. Any such issue can be addressed as necessary following the outcome of that determination. [22] Absent that agreement by the parties, the hearing of this dispute will be adjourned pending the outcome of the termination dispute. Either party may seek to have this matter re-scheduled at that time. [23] The parties are to advise the Board forthwith as to whether this matter is proceeding on November 23, 2021 in accordance with paragraph [21] above. Dated at Toronto, Ontario this 9th day of November, 2021. “Marilyn A. Nairn” ________________________ Marilyn A. Nairn, Arbitrator