HomeMy WebLinkAbout2012-2477.Ranger.22-03-03 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#2012-2477
UNION# 2012-0424-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Ranger) Union
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The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Deborah Leighton Arbitrator
FOR THE UNION Craig Flood
Koskie Minsky LLP
Counsel
FOR THE EMPLOYER Jonathan Rabinovitch
Treasury Board Secretariat
Counsel
HEARING January 6; February 11; May 20 and July
21, 2021
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Decision
INTRODUCTION
[1] The union alleges that the Ministry has breached the order for future damages for
premium pay made in a decision of the Board issued in 2013 and a settlement in
2015 that, inter alia, obliged the employer to produce documents so that the union
could verify the premium payments. Significant attempts to settle these issues
have not been successful and the matter is proceeding with litigation.
[2] This decision concerns the union’s motion for production of documents used to
calculate payments made to the grievor on a quarterly basis for overtime and other
premiums. My jurisdiction flows from the alleged breach of the remedial order in
the 2013 decision and from the parties’ agreement in the 2015 settlement that I
remain seized of its implementation or interpretation. Some history of this long and
complicated case is necessary to understand the context of the matter now before
me.
[3] In January 2010, the Board released a decision on the merits of Mr. Robert
Ranger’s grievances upholding his complaints that he had suffered discrimination,
harassment, and a poisoned workplace at the Ottawa Carleton Detention Centre
when he worked there as a correctional officer, and that the employer failed in its
duty to accommodate him, when he became seriously ill as result of the
harassment and discrimination, thus breaching the Human Rights Code, R.S.O.
1990.c.H.19 (Code) and the collective agreement. I remained seized on the issue
of remedy.
[4] In September 2010, the parties agreed by Memorandum of Settlement (MOS) to a
work accommodation for Mr. Ranger. A further MOS in November 2010 outlined a
procedure for addressing the outstanding remedy issues. Many of the issues were
settled.
[5] The hearing on remaining remedial issues took nine days and the decision on
compensation for the breaches of the Code and the collective agreement was
released in July 2013 (the Remedy Decision). The remedial orders included order
five for compensation for future losses of premium pay:
The employer shall include overtime and other premium pay in the
grievor’s pay as long as he remains in his current position. The
overtime and premium pay shall be calculated using the same
method that the parties agreed to in deciding what was due to the
grievor between 2002-2010 and shall be paid retroactively to the date
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this compensation stopped in 2010. The employer shall pay these
retroactive monies to the grievor forthwith.
[6] Order five provides that the same method that the parties agreed to in coming to
the payments for premiums due to the grievor between 2002 and 2010, shall be
used to calculate all future premium payments.
[7] Shortly after the 2013 Remedy Decision, the union sought information from the
Ministry as to how the calculations for the premium payments were being made.
There was an exchange between counsel and an agreement in December 2013 to
set a date for the parties to address the issues with the Board’s assistance. The
first available date was set for January 15, 2015. That day the parties agreed to a
settlement that included, inter alia, that the employer would make the premium
payments to the grievor quarterly, no later than four weeks following the date of
the quarter and to provide information in supporting documents to explain the
calculation of the quarterly payments such as, “pay run spreadsheets,” that would
include aggregate amounts for each premium payment. The employer also agreed
to provide “supporting information as may be available with respect to the
payments already made pursuant to Order #5 for the years 2011-2014... with
respect to the calculations of total overtime pay paid to Classified COs and total
premium pay paid to the Classified COs.” (para. 5, 2015 MOS) The parties also
agreed to designate a contact in charge of administering premium pay and keep
each other informed should the designee change. (para. 6, 2015 MOS)
THE UNION’S POSITION
[8] In summary, the union submits that the Ministry has failed to comply with order five
of the Board's remedy decision and the 2015 MOS. In the 2015 MOS, the Ministry
agreed to provide payments on a quarterly schedule and the source documents to
show that these payments were accurate. However, the payments were often late
and information as to what was included in the payment was confusing. Answers
to the union’s requests for clarifications were often delayed or not forthcoming.
[9] The Ministry also agreed in the 2015 minutes to provide the union with source
documents to support premium payments made to the grievor for the years 2011
to 2014. Despite numerous queries over the years since the 2015 MOS for
documents that would allow the union to ensure that the payments to the grievor
are accurate, it is still not able to verify them.
[10] In anticipation of the hearing scheduled for January 6, 2021, the union listed
alleged breaches of the 2015 MOS in a letter to the Ministry counsel dated
December 18, 2020, as follows:
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1. Unilateral and non-disclosed change in Employer representative
2. Ongoing and repeated delays in providing explanations when requested
3. Use of the "union spreadsheet" title
4. Incorrect duration of the Quarters
5. Confusing and inconsistent information regarding the payment
calculation
6. Late receipt of the spreadsheet for the Quarter ending June 30, 2020
7. Ambiguous/unclear information regarding the spreadsheet for the
Quarter ending June 30 including lack of clarity as to what was included
8. Late payment in respect of Quarter ending September 30, 2020 and no
explanation for such lateness
9. Unclear and ambiguous information regarding the spreadsheet for the
Quarter ending September 30
10. No response to email from Mr. Inglis dated October 26, 2020
11. No answer to question as to why Mr. Ranger was not receiving a
proportion of the pandemic pay premium
This list was provided to Ministry counsel without waiving any claim with respect to other
and earlier breaches of the MOS identified to the Ministry.
[11] Counsel for the union submitted that the purpose of the 2013 remedial orders was
to make the grievor whole. While the grievor held the position in probation and
parole, he was to be paid as if he worked in a correctional institution. This included
order five which required the Ministry to pay the grievor, in addition to the regular
salary, premium pay as received by correctional officers working in the institutions.
[12] Thus, the union renews the complaint that the Ministry is in breach of order five
and, inter alia, for the failure to provide the source information behind the
payments contrary to the obligation to do so in the 2015 MOS. Counsel submits
that the documents sought by the union are arguably relevant to the issues before
me alleging breaches of both order five and the 2015 MOS.
THE EMPLOYER’S POSITION
[13] n summary, the employer submits that each premium payment to the grievor has
been made according to the method that was used by the parties to reach the
settlement amount for lost premium pay between 2002 and 2010 as order five
required. Counsel referred to the “annual average method” which was described
as calculating the amount equivalent to the average overtime and the average
premium payments paid to classified COs across the Ministry in each year for
every pay period. This is the method that the Ministry continues to use in paying
the premium payments for order five of the remedy decision. Counsel noted that
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as part of the 2015 MOS, the employer agreed instead of making the premium
payments annually, they would be made quarterly.
[14] In counsel’s submission, the 2015 MOS settled the issue of what the methodology
would be in calculating the premium payments for the grievor and the union got
certainty on what documents would be provided to it to ensure that the calculations
were done properly. Thus, in counsel’s submission the time to question the
methodology used in reaching the premium payments was back in 2013 and not
after the MOS in 2015. He concluded by submitting that if the method of
calculating the premiums was flawed, and he maintained it was not, it was too late
to be litigated.
ORDERS FOR PRODUCTION OF DOCUMENTS
[15] The union seeks an order from the Board for production of the following
information and documentation as listed below. I have included the submissions of
the parties under each request for production and my decision on whether the
documents should be ordered. In making these orders, I have carefully reviewed
the submissions of the parties and the documents put before me for the purpose of
the motion.
ITEM ONE
1. Any and all documentation, including any and all memoranda,
correspondence, agreements, and all supporting documentation
regarding the method used by the Employer to calculate Mr.
Ranger's entitlement to a proportionate share of premiums from 2002
to 2010, and retroactive from July 24, 2013, to when compensation
stopped in 2010, setting out the Employer's understanding of and
implementation of "the same method agreed to in deciding what was
due to (Mr. Ranger) between 2002-2010".
[16] Counsel for the union argued that the documents listed in item one are arguably
relevant to the issue of the formula of calculating the premium benefits for the
grievor. Moreover, the Ministry agreed to provide this information in paragraph five
of the 2015 MOS,
[17] Counsel for the Ministry submitted that nothing before January 2015 is arguably
relevant because the MOS was in full and final settlement of the union’s grievance
relating to order five. Also, the Ministry argues that it has provided the documents
required under paragraph 5 of the 2015 MOS. Thus, it is too late for the union to
question the method of calculating premium pay in its complaint that there has
been a breach of order five and the 2015 MOS.
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ORDER FOR ITEM ONE
[18] In paragraph five of the 2015 MOS, the employer agreed to provide “supporting
information” with respect to payments already made pursuant to order five for the
years between 2011 and 2014. There is a dispute between the parties as to
whether the Ministry has satisfied its obligation under paragraph five. I am
persuaded that given the language of the 2015 MOS, the request for production of
documents before 2015 relates to a live issue between the parties as to whether
the MOS has been breached.
[19] There are references throughout the MOS that the source documents that the
Ministry is obliged to produce are for the purpose of implementation of order five.
(para. 7, 2015 MOS) Thus, I am not persuaded by the employer’s argument that
the 2015 MOS was meant to close the door on the union questioning the accuracy
of the premium payments to the grievor before 2015. Further, there is no language
in the MOS that acknowledges or confirms the employer’s position that the parties
agreed on what counts as the “annual average method”. This is going to be an
issue on the merits of the union’s grievances before me now.
[20] There is, however, nothing in the 2015 MOS that required the Ministry to provide
documents between 2002 and 2010. Thus, the Ministry is ordered to provide the
union with the documents requested here between 2011 and 2014
ITEM TWO
2. Any and all memoranda, formula, spreadsheets, any and all
documents regarding the manner in which the Employer calculated
any and all documents regarding the preparation, processing and
disclosure to the Union of any spreadsheets regarding premiums
payable to Mr. Robert Ranger and the calculation of any monies paid
to Mr. Robert Ranger pursuant to the Memorandum of Settlement of
January 15, 2015, including but not limited to the timing of any such
disclosure and/or payment and/or efforts to make the payments as
and when required by the Memorandum of Settlement and/or efforts
to answer the questions posed and provide the information requested
by Mr. Frank Inglis with respect to the implementation of the
Memorandum of Settlement of January 15, 2015 and Order #5 of the
Decision of July 24, 2013, including but not limited to in his emails of
April 14, 2020, August 5, 2020, and October 26, 2020.
[21] Counsel for the employer agreed that the documents under item two are arguably
relevant and the Ministry would produce what they had, except for documents
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requested relating to the efforts to make the payments and to the efforts to answer
the union's questions about the information provided by the Ministry to explain the
payments.
[22] Counsel for the union responded that the documents relating to the efforts to
provide the information that it was required to by the 2015 MOS are arguably
relevant to the issue of whether the Ministry took all reasonable efforts to produce
the source data as required by that settlement document.
ORDER FOR ITEM TWO
[23] The union alleges that the employer has breached its obligation under the 2015
MOS to make best efforts to provide the supporting documents it agreed to send
the union. The MOS states if a payment or supporting information for the payment
are not made within the time set out in paragraphs one and two of the MOS, the
union may seek relief for the breach, if shown that the failure was for reasons
within the Ministry's control. Documents before me show that on several occasions
the Ministry was late in paying the grievor’s premium pay and in providing the
information to the union to assess whether the payment was accurate. Thus,
documents that relate to what steps the Ministry took to fulfill this obligation are
arguably relevant and these documents must be produced.
ITEM THREE
3. Any and all documents regarding the calculation and payment of
any premium related to or as a response to the COVID-19 Pandemic
paid to any and all regular service employees in the classification of
Correctional Officer 2 in the Province of Ontario from and after March
17, 2020, including that commonly referred to as "pandemic pay",
including but not limited to any and information, documents,
memoranda, orders, policies, directives, bulletins and all supporting
documentation setting out the criteria of entitlement, the numbers of
regular service employees in the classification of Correction Officer 2
receiving any such premium, the quantum of any such premium, and
the home location and hours worked by any such individual regular
service employees in the classification of Correctional Officer 2 who
received such payments.
[24] The union submits that the grievor has not been paid the pandemic premium
received by COs, contrary to order five. Counsel emphasized that the grievor
would have earned this premium but for the impact of the employer’s breaches of
his human rights, which led him to becoming ill and unable to work in a
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correctional institution. These documents are arguably relevant to the payment of
this premium.
[25] Counsel for the Ministry submitted that the grievor is not eligible for pandemic pay
because he works in a probation and parole office and not in an institution.
Therefore, according to Regulation 241/20 the grievor should not receive
pandemic pay and he cannot grieve it. In sum, pandemic pay is for hours worked.
Therefore, these documents are not arguably relevant.
ORDER FOR ITEM THREE
[26] The original orders in the Remedy Decision were based on a make whole
principle. The Ministry was ordered to pay the grievor on an ongoing basis as if he
continued to work in a correctional institution. This included an order for future
losses of premium pay. The issue of whether the grievor should receive the
pandemic premium paid to other COs is disputed by the parties. The documents
requested here are therefore arguably relevant and the Ministry is ordered to
provide them.
ITEM FOUR
4. Any and all correspondence in any form to and/or from Mr.
Jonathan Edwards, Mr. Bart Nowak, Ms. Jenny Villagra, Ms. Joy
Stevenson, Ms. Christie Hayhow and/or any other person regarding
their assignment or removal as the Designated Employer
Representative for the purposes of the Memorandum of Settlement
of January 15, 2015, any transfer memoranda or other
documentation between any of these persons regarding the
Memorandum of Settlement of January 15, 2015, the status of any
outstanding responses to any inquiries to Mr. Frank Inglis and any
and any documentation related to communication by or in respect of
the Designated Employer Representative with the Union and/or Mr.
Frank Inglis in respect of the Memorandum of Settlement of January
15, 2015.
[27] Counsel for the union submitted that the parties agreed in the 2015 MOS that each
side would have a designated representative to manage any issues arising about
the premium payments. Further, the parties agreed to use their best efforts to
“ensure that there is a designated representative at all material times”. The request
for documents here goes to the issue of whether the employer has failed in its
obligation under the 2015 MOS to keep a designated representative in place at all
time and what efforts they made to ensure this.
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[28] Counsel for the employer submitted that there had been no breach of paragraph
six of the 2015 MOS and therefore this request for production of documents is not
valid. Further, the Ministry has the right as to how it appoints staff, and documents
relating to how designated representatives were chosen for this role are not
arguably relevant to the union’s case that the employer has breached the 2015
MOS.
ORDER FOR ITEM FOUR
[29] The issue of whether there has been a breach of paragraph six of the 2015 MOS,
is disputed by the parties. There is documentary evidence before me that the
union was not advised when the original Ministry designee retired in 2018. For
some considerable months after this retirement, the union designee’s queries
about supporting documents went unanswered. Eventually he learned that the
original Ministry designee had retired some six months earlier. Given the parties
agreement in the MOS to use their best efforts to ensure a designee was always in
place, the documents are arguably relevant. Thus, the Ministry is ordered to
produce documents requested under item four.
ITEM FIVE
5. Any and all original documentation and/or source data in any form
(paper, electronic, and/or magnetic) representing any and all
premiums paid to employees in the classification of Correctional
Officer 2 from 2002 to present and, without limiting the generality of
the foregoing, copies of all awards, memoranda of agreement,
memoranda of settlement, minutes of settlements, consent orders,
and/or agreements in any form and determining the outcomes of
grievances or complaints resolved and/or decided at any level of the
grievance procedure and/or before the Grievance Settlement Board
in respect of the payment of premiums to employees in the
classification of Correctional Officer 2, including those giving rise to
the payment of premiums to Robert Ranger identified under the code
"GSP- Grievance Settlement No Pension", from 2002 to present.
[30] Counsel for the employer agreed to provide the source documents requested here
but not for documents requested before the 2015 MOS, or those relating to
settlements and orders of the Board. Counsel relied on the same argument that he
made for the documents listed under item one that the 2015 MOS was in full and
final settlement of the issues before that date. Counsel argued that the request for
documents relating to the outcomes of grievances or complaints resolved and or
decided at any level of the grievance procedure and or before the GSB in respect
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to the payment of premiums is information that the union ought to have. The
Ministry should not be required to produce these documents.
[31] In reply counsel for the union reiterated his argument that in the 2015 MOS, the
employer agreed to provide documents before 2015 and therefore these
documents are arguably relevant to whether the Ministry has breached its
obligations under the MOS.
[32] In response to the employer’s argument that the union has the information
regarding settlements during the grievance procedure, counsel argued that given
these settlements are required to be confidential and the union is obliged not to
share the information outside of those directly involved, it does not have access to
this information and therefore needs to get it from the employer.
ORDER FOR ITEM FIVE
[33] The Ministry agreed to provide documents sought here from 2015 to the present,
thus acknowledging that the documents under item five are arguably relevant. For
the same reasons, outlined under item one, that I do not agree that the effect of
the 2015 MOS forecloses all production before 2015.
[34] The Ministry opposes the production documents for premiums paid under
settlements or orders of the board. Whether premium payments made pursuant to
settlements should be included in the calculations of total premiums paid to COs
and thus should be part of the grievor’s premium pay is an issue between the
parties. Since these premiums must be paid by the employer to COs after an order
of the Board or a settlement agreement, the Ministry is in the best position to
provide these documents. Thus, the Ministry must produce the documents under
item five from 2011 to the present.
ITEM SIX
6. Any and all original documentation and/or source data in any form
(paper, electronic, and/or magnetic) representing any monies earned
by regular service employees in the classification of Correctional
Officer 2 above and beyond their basic hourly rate which has not
already been included in the payment of premiums
to Robert Ranger from 2002 to present, including but not limited to
any monies earned for shifts changed without adequate notice and/or
any monies earned for working on a statutory holiday but deferred
and taken as paid time off.
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[35] Union counsel submitted that the Ministry is not including the value of paid time off
in its calculation of the grievor’s premium pay. When a CO earns a premium, for
example, for a statutory holiday, they may opt to take the pay or subsequently a
day off. The union submits that it has been asking for this information since 2016
and these documents are arguably relevant and should be produced.
[36] Counsel for the Ministry opposes this production on the grounds that this issue
was settled in 2015 when the “annual average method” for calculating the grievor’s
premium pay was agreed to by the union.
ORDER FOR ITEM SIX
[37] Again, whether this premium in the form of time off should be quantified for the
purposes of premium pay for the grievor is an issue in dispute between the parties.
The annual average method is the general method that the employer uses to make
the calculations, but it is far from clear just how those calculations are made. The
union has asked for information on how these calculations are made since shortly
after the remedy decision was issued in 2013. Hence, these documents are
arguably relevant, and the Ministry must produce them from 2011 to the present.
DECISION ON MOTION FOR A DECLARATION OF BREACH OF THE 2015 MOS
[38] The union asked me to find, based on the documents before me, that there has
been a breach of the 2015 MOS because there is clear evidence that several
payments and supporting documents were late. I have considered this request
carefully. I am not persuaded that it would be appropriate to declare a breach of
the 2015 MOS at this point.
[39] This is a motion for production of documents, before a hearing that shall proceed
on the issue of whether the Ministry has breached order five and the 2015 MOS.
The documents before me were admitted for the purposes of that motion. But
more importantly, while it is clear on the documents that the Ministry missed its
obligations to provide payments and the underlying information on several
occasions it does not explain why it was late. The Ministry promised to make
payments using its best efforts, and that requires evidence and argument.
DECISION ON THE MOTION TO APPOINT AN AUDITOR
[40] I acknowledge the union's frustration about getting the information they need to
verify that Mr. Ranger is being paid properly under order five of the Remedy
Decision. However, I am not prepared to order an auditor be appointed at this
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stage of the proceedings. The case law provides that adjudicators generally order
an auditor to be appointed when there has been a breach of a remedial order and
the financial documents are complex. This is a motion for production of
documents, and I am of the view that without a hearing on the merits of the breach
of the MOS grievance, it would not be appropriate to order the appointment of an
auditor.
[41] I also acknowledge the Ministry’s challenge in producing these documents and
satisfying the union that the payments to the grievor are accurate. Counsel for the
Ministry made an argument that the premium payments to the grievor were clearly
in the ‘ballpark,’ if one compared what the grievor was earning annually to the
average pay for classified COs. Given that order five was made to compensate the
grievor for serious breaches of his human rights, a rough estimate that he is being
paid properly under the order is not satisfactory.
[42] As I have stated above, I am of the view that at this stage of the proceeding, it
would not be appropriate for me to order the appointment of an auditor. However,
given the long and difficult history of this matter and the challenge of sorting out
the financial documents necessary to allow the union to verify that the premium
payments are accurate, I recommend that the Ministry retain an independent
auditor to assist the parties and the Board.
Dated at Toronto, Ontario this 3rd day of March 2022.
“Deborah Leighton”
_______________________
Deborah Leighton, Arbitrator