HomeMy WebLinkAbout2022-1365.Russell.23-07-07 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# 2022-1365
UNION# 2022-0736-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Russell) Union
- and -
The Crown in Right of Ontario
(Ministry of Public and Business Service Delivery) Employer
BEFORE Annie McKendy Arbitrator
FOR THE UNION James Craig
Morrison Watts
Counsel
FOR THE EMPLOYER Paul Meier
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING May 25, 2023
- 2 -
Decision
[1] This is a Decision regarding a motion brought by the Employer that the
substance of this Grievance is within the exclusive jurisdiction of the Workplace
Safety and Insurance Board and not that of this Board.
[2] The Grievance was scheduled pursuant to article 22.16 of the collective
agreement in place between the parties. I provide only brief reasons in keeping
with article 22.16, and this Decision is without precedent.
[3] The parties provided me with a chronology of events which was agreed to
contain all of the facts upon which they would seek to rely for the purpose of the
motion and the merits. The background facts relating to the payment of the
Grievor by the Employer and by WSIB are quite complex, and I thank counsel for
both parties for their diligent efforts in setting out the facts succinctly and clearly.
[4] The Grievance arises because the Grievor believes that he has been paid
improperly as a result of a workplace injury, which occurred in 2011. The
Grievor’s 2011 injury was found to be compensable by WSIB. At the time of his
initial WSIB claim in 2011, the Grievor elected to be placed on the Employer’s
payroll at the outset of each calendar year and to use his annual credits until he
exhausted them. These credits were typically exhausted around the end of April
of each year. His election to use his annual credits allowed him to accrue
pension contributions and receive benefits during the period he was on the
payroll. When the annual credits were exhausted each year, he was placed on
unpaid leave by the Employer, and reverted to receiving benefits from WSIB for
the remainder of the year.
[5] In 2017 the Grievor was accommodated to a position in a different department
from his pre-injury position. WSIB awarded a Partial Loss of Earnings (“PLOE”)
award in March of 2018 to compensate him for the difference between his pre-
injury wages and his lower earnings in the accommodated position.
- 3 -
[6] In early 2019 the Grievor had a reoccurrence of his injury and reopened his 2011
WSIB claim. In keeping with his earlier election, he again began receiving
payment from the Employer until approximately April using his annual credits. In
2019 and beyond, he also received a top-up from WSIB in addition to the annual
credits, as a result of the wage differential and resulting PLOE award. Once his
credits were exhausted, he reverted to receiving payments from WSIB
exclusively.
[7] Between 2019 and 2022, the Grievor raised concerns that the amount he was
receiving during the period he was on the Employer’s payroll was incorrect. He
raised concerns regarding the payments in September 2019, January 2020 and
February 2022. Each time the WSIB provided a detailed breakdown of how the
calculation was made. In addition to the chronology of events, I accepted the
Grievor’s verbal stipulation that he believed that the amount of money he was
being paid between January and April was effectively decreasing. No supporting
facts were provided beyond his stipulation.
[8] On 23 March 2022, the Grievor filed the instant grievance, asserting that the
Employer had contravened Article 2 (Management Rights), Article 3 (No
Discrimination/ Employment Equity), Article 7 (Pay Administration) and Article 9
(Health & Safety) of the Collective Agreement.
[9] In their submissions, the Employer referred me to s. 26 of the Workplace Safety
& Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, and to the decision in Maple
Leaf Foods Inc. v. United Food and Commercial Workers, Local 175, 2018
CanLII 69918 (Surdykowski) (hereinafter “Maple Leaf Foods”), in support of their
position that the WSIB has exclusive jurisdiction to address any miscalculation of
the Grievor’s entitlement.
[10] The Union emphasized that the language of the Grievance referenced errors in
payroll which properly fall within the jurisdiction of the Board.
- 4 -
[11] I have considered the evidence before me and find that the substance of the
issues raised by the Grievor relates to the calculation of his PLOE benefits during
the first four months of the year during which he was on the Employer’s payroll.
Nothing in the agreed chronology pointed to any error in payment made by the
Employer. Rather, the Grievor appears to dispute the explanation provided by
WSIB of his payments in response to his requests for clarification. In keeping
with the decision in Maple Leaf Foods, I find that the essential character of this
dispute relates to the calculation of his WSIB benefits and therefore falls within
the exclusive jurisdiction of the WSIB/WSIAT.
[12] Additionally, the Grievor sought to stipulate that in 2023 he was advised he would
remain on the Employer’s payroll until July instead of April as he had in previous
years. He alleged that this was evidence that the Employer was paying him
improperly. The Employer submitted that this incident did not fall within the scope
of this Grievance. I agree. There were no facts before me relating to the 2023
top-up period or how the calculations were made. As such, these circumstances
arising almost a year after the filing of this Grievance are not before me and may
be addressed by the parties in due course.
[13] The Grievance is dismissed.
Dated at Toronto, Ontario this 7th day of July 2023.
“Annie McKendy”
_________________________
Annie McKendy, Arbitrator