HomeMy WebLinkAbout2012-2477.Ranger.15-12-23 DecisionCrown 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#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 Community Safety and Correctional Services) Employer
BEFORE Deborah J.D. Leighton Vice-Chair
FOR THE UNION Craig Flood
Koskie Minsky LLP
Counsel
FOR THE EMPLOYER Paul Meier
Treasury Board Secretariat
Labour Practice Group
Counsel
HEARING January 15 and 16, 2015
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Decision
Introduction
[1] The decision on the merits of Robert Ranger’s grievances was released in January
2010. Since the merits of the case and remedy were bifurcated, I was asked to
remain seized on all outstanding issues, including remedies. In September 2010
the parties agreed by Memorandum of Settlement to an accommodation for Mr.
Ranger in full and final settlement of two of his accommodation grievances, and
one other grievance, “except remedy issues regarding lost wages damages and
other forms of compensation.” In November of 2010 the parties agreed to a
process for dealing with all the outstanding remedial issues. All of Mr. Ranger’s
grievances to the date of this agreement were to be included. The hearing on
remedial issues proceeded over nine days of hearing and the decision on
compensation for the breaches of the Ontario Human Rights Code and the
collective agreement was released in July, 2013.
[2] There are two claims to be decided in this decision. Mr. Ranger grieved in 2012
that his claim for a second pair of orthotics was wrongly denied by Manulife. The
union’s position is that given the griever was accommodated in a position in
Probation and Parole in the Ottawa Court House as a Rehabilitation Officer 2 and
remained classified as a correctional officer (CO) permanently, he was entitled to
the same benefit as correctional officers, that is, two pairs of orthotics per year.
The employer’s position is that the benefit is for correctional officers who work in
correctional institutions. Since Mr. Ranger works in the Ottawa Court House, he is
not eligible for the second pair.
[3] The second claim is for vacation credits between 2002 and 2011. In the decision
awarding compensation in 2013, I ordered that vacation credits used to “top up”
long term disability benefits (LTIP) be restored. The union contends, on the
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principle of making Mr. Ranger whole, that he is entitled to vacation credits that he
would have accrued had he been at work. The employer’s position is that I have
no jurisdiction to award this now. This claim was not raised when the
compensation issues were argued, and therefore it is too late now and I am
functus officio on this matter.
[4] These matters proceeded with an agreed statement of facts and argument.
Documents were admitted on agreement of the parties, including the grievor’s
written statement of evidence. Counsel for the employer chose not to cross-
examine the grievor on his statement. The Partial Agreed Statement of Fact and
the grievor’s statement are as follows:
PARTIAL AGREED STATEMENT OF FACT
The parties agree to the following facts for the purpose of the above captioned
proceeding, on the agreement that each party may adduce additional evidence
which supplements this Partial Agreed Statement of Fact provided such
additional evidence does not contradict the facts herein.
Manulife Financial’s Supplementary Health and Hospital Plan
1. At all material times, the Grievor has been enrolled in Manulife Financial’s
Supplementary Health and Hospital Plan (“Health Plan”) bearing Policy
Number 15900.
2. Under the Collective Agreement, the Employer pays 100 per cent of the
premiums for the Health Plan (Article 39.1).
3. Article 39.2.7 of the Collective Agreement provides that:
Effective June 1, 2002,… seventy-five percent (75%) of the cost of
specially modified orthopaedic shoes (factory custom) ready-
made, off-the-shelf with a limit of one (1) pair to a maximum of five
hundred dollars ($500) per pair per calendar year, if medically
necessary and prescribed by a licensed physician; and one
hundred percent (100%) of the cost of orthotics [i.e., corrective
shoe inserts], if medically prescribed, up to a limit of one (1) pair,
to a maximum of five hundred dollars ($500) per calendar year...
4. Article 39.2.7 also provides:
Notwithstanding the forgoing, coverage for employees of
institutions shall be two (2) pairs of orthotics per calendar year to a
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maximum of five hundred dollars ($500) per pair and two (2) pairs
of orthopaedic shoes per calendar year to a maximum of five
hundred dollars ($500) per pair;
5. The “Guide to Your Benefits for Ontario Public Service Employees
represented by the Ontario Public Service Employees Union” states
(attached hereto as Exhibit “A”):
Orthotics
One (1) pair of orthotics (corrective shoe inserts) reimbursed at 100% to a
maximum $500 per calendar year, if prescribed by a physician, podiatrist
or chiropractor.
Claims submitted for reimbursement of orthotics must include:
• Original referral from the prescribing physician, podiatrist or
chiropractor
• Diagnosis which requires the orthotic appliance
• Copy of the bio/gait analysis
• Casting technique
• Original sales receipt stating the patient’s name, date of purchase and
method of payment
• Date the orthotics were picked up from the supplier
Eligibility for Second Pair
Employees of institutions which operate 24 hours/day and 7 days/week are
eligible for a second pair of orthotics and orthopaedic shoes at the same
coverage level as previously noted.
Definition of Insurance
The term “institutions” applies only to facilities defined in the Public Service
of Ontario Act, such as correctional institutions under the Ministry of
Correctional Services Act, or a youth custody facility under the Youth
Criminal Justice Act (Canada) and are residential operate 24 hours/day
and 7 days/week.
Employees in institutions operated by the Provincial Schools Authority are
also entitled to a second pair of orthotics and orthopaedic shoes.
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6. Under the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, a
“correctional institution,” means a correctional institution established or
continued under section 14, whether it is operated or maintained by the
Ministry or by a contractor, but does not include a place of open custody,
a place of secure custody, a place of temporary detention or a lock-up
established under section 16.1 of the Police Services Act (section 1).
There are currently twenty-eight (28) correctional institutions in Ontario.1
The Grievor’s Workplace
7. On or about May 1, 2010, the Grievor began working in a position in the
Ottawa Centre Probation and Parole Office (“P&P Office”), Community
Services, MCSCS, located in the Ottawa Courthouse (161 Elgin St., Fl. 3,
Rm. 3211).
8. As stated by Vice-Chair Leighton in her Decision dated July 24, 2013 (at
para.4):
Shortly after the decision on the merits, the employer put Mr. Ranger
back on the payroll and he returned to a position in Probation and Parole
(P&P) on May 1, 2010. Initially the position was a desk job, but Mr.
Ranger approached his supervisor when he learned that the counter
position was available. This was the position that he did as a temporary
accommodation in 2005. The employer is accommodating Mr. Ranger in
this counter position, as a Rehabilitation Officer 2 in the Ottawa Court
Intake Office. He is to continue at the same pay as a Correctional Officer
(CO). The employer tailored the duties to the grievor’s accommodation
needs and with care to ensure a wide variety of duties. The evidence
before me is that he is happy with this position. The parties formalized the
agreement in Minutes of Settlement signed on September 14, 2010.
9. Paragraph 1 of the Memorandum of Settlement dated September 14,
2010 (the “2010 MOS”) states (attached hereto as Exhibit “B”):
1 Algoma Treatment and Remand Centre; Brantford Jail; Brockville Jail; Central East Correctional Centre; Central
North Correctional Centre; Elgin-Middlesex Detention Centre; Fort Frances Jail; Hamilton-Wentworth Detention
Centre; Kenora Jail; Maplehurst Correctional Complex; Monteith Correctional Complex; Niagara Detention Centre;
North Bay Jail; Ontario Correctional Institute; Ottawa-Carleton Detention Centre; Quinte Detention Centre; Sarnia
Jail; South West Detention Centre; St. Lawrence Valley Correctional and Treatment Centre; Stratford Jail; Sudbury
Jail; Thunder Bay Correctional Centre; Thunder Bay Jail; Toronto East Detention Centre; Toronto Intermittent
Centre; Toronto South Detention Centre; Toronto West Detention Centre (no inmates at present); and Vanier
Centre for women (Milton).
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The Grievor will be permanently assigned to a Rehabilitation
Officer 2 (“Rehab Officer”) position, MCSCS, as of the date of the
signing of this Agreement. The parties acknowledge that the
Employer will work with the Grievor to develop and best utilize his
skills, interests and abilities in that position in accordance with the
attached Job description and Addendum (attached as Schedule
“A”).
10. Schedule “A” of the 2010 MOS states, in part:
Rehab Officer – Ottawa Court Intake office
To provide support in a Probation/Parole Court office setting that
will enhance services to the courts as well as Probation/Parole
and conditional sentence clientele…
11. Paragraph 2 of the 2010 MOS states:
The Grievor’s actual work location will be the Probation & Parole
Services, Ottawa Centre Office, Floor 3, Room 3211, 161 Eglin
St., Ottawa as requested by the Grievor.
12. Paragraph 3 of the 2010 MOS states:
In the Rehab Officer position, the Grievor shall be classified as a
“Correctional Officer 2 (CO2)” under the applicable Collective
Agreement. The Parties agree that assigning the Rehab Officer
position to the CO2 classification is atypical and is solely done on
behalf of the Grievor on a without precedent and without prejudice
basis. For greater certainty, the assignment cannot be and will not
be used as a comparator to any other position or classification or
for any other purpose.
13. Paragraph 5 of the 2010 MOS states:
The Parties agree that the Grievor will be entitled to the following
terms and conditions of employment as if he was a Regular
Correctional Officer in accordance with and subject to the
applicable Collective Agreement and applicable Employer policies:
(a) Hours of Work: the normal hours of work shall be forty (4)
hours per week;
and
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(b) Pension benefits as applicable to Regular Correctional Officers
in accordance with and subject to the applicable Pension Plan.
The Grievor’s Grievance
14. In 2010, the Grievor submitted claims for two pairs of orthotics to
Manulife. Manulife processed both claims.
15. In 2011, the Grievor submitted claims for two pairs of orthotics to
Manulife. On or about November 17, 2011, Manulife denied the Grievor’s
claim for the second pair of orthotics.
16. Manulife had contacted Ontario Shared Services (“OSS”) to determine if
the Grievor was in fact employed in an institution. OSS confirmed with
Manulife that the Grievor was employed at a P&P Office at the Ottawa
Courthouse. Manulife determined that the Grievor was not eligible for a
second pair of orthotics because he was not an employee of an
institution.
17. On or about June 5, 2012, the Grievor submitted a grievance. In his
Statement of Grievance, the Grievor alleged (attached hereto as Exhibit
“C”):
I grieve that the employer has violated my rights under the
collective agreement, specifically but not limited to Article 39.2.7.
Furthermore, the employer has violated my rights under the Memo
of Settlement dated Sept. 14, 2010… and the spirit of the said
MOS.
18. In his Settlement Desired, the Grievor claimed:
The above-mentioned employee was denied benefits as per the
stated Article (39.2.7) of the stated Collective Agreement whereby
the employees of institutions shall be allowed two pairs of
orthotics per calendar year to a maximum of $500 per pair and
two pairs of orthopaedic shoes per calendar year… [Emphasis
in the original].
Furthermore, the employer is in contravention of the… stipulated
Memo of Settlement dated Sept. 14, 2010 which Article 3
stipulates the employee shall be classified as a CO2 under the
applicable Collective Agreement, therefore entitled to all relevant
benefits.
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19. The OPSEU Collective Agreement provides an appeal process for denied
benefits claims. Pursuant to Article 22.9.2 of the Collective Agreement,
any complaint or difference concerning the denial of an insured benefit
claim “shall be referred to the Claims Review Subcommittee of Joint
Insurance Benefits Review Committee.”
20. Under paragraph 9 of the 2010 MOS, “the Grievor and the Union hereby
release the Employer, its agents, employees, representatives and officials
from any and all actions, claims, causes of action, grievances or
complaints of any nature at common law or pursuant to statute related to
his accommodation in the workplace, including, but not limited to, all
claims under common law, the Collective Agreement, the Labour
Relations Act, the Public Service of Ontario Act and its regulations and/or
directives, the Workplace Discrimination Harassment Prevention Policy,
the Ontario Human Rights Code, the Ontario Employment Standards Act,
the Occupational Health and Safety Act, and the Office of the
Ombudsman, save and except remedial issues regarding lost wages,
damages and other forms of compensation.
21. Under paragraph 10 of the 2010 MOS, the parties agreed that “For
greater certainty, all actions, claims, causes of action, grievances or
complaints of any nature related to his accommodation in the workplace
are not to be re-filed, disputed or pursued before the GSB or in any other
forum, save and except remedial issues before the GSB regarding lost
wages, damages and other forms of compensation. It is further agreed by
the Parties that any and all outstanding obligations and entitlements
concerning his accommodation in the workplace are resolved upon the
final signing of this Agreement, save and except remedial issues
regarding lost wages, damages and other forms of compensation”.
22. At paragraph 11 pf the 2010 MOS, “The Grievor acknowledges that the
terms of this Agreement, including the release, are fully understood by
him and the above-mentioned terms are sole consideration for this
Memorandum of Settlement.
23. Under paragraph 13 of the 2010 MOS, “Vice-Chair Leighton shall remain
seized with respect to any issues concerning the implementation of these
settlement terms”. The parties have agreed that Vice-Chair Leighton has
jurisdiction with respect to the Grievance dated June 5, 2012 (attached
here to as Exhibit “C”).
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Grievor’s Statement of Evidence
Without Prejudice
OTTAWA CARLETON DETENTION CENTRE
Once I had reported to my place of work, usual work hours were from Monday’s
from 5:00am to 1:00pm due to the intermittent remainder of the week was
5:30am to 1:30pm Evening hours were from 1:00pm to 9:00pm ie: admitting and
discharge I basically remained in that area all day, except in a rare occasion
when an inmate needed to be escorted to his housing area.
Intake was done by way of the computer OTIS
If assigned to module duty, then you did your shift with very little movement, in an
area about 100sqft
Work area square footage was approximately (40ft x 20ft = 800 sq ft). When an
escort needed to be done, the walk was approximately, to the furthest extreme of
the Institution about a maximum walk of 5 mins there and back. Any other area it
would have taken 2 mins there and back.
During a work day, I would stand or sit at the counter, waiting for new admits.
Other than that, the main streams were in the morning, serving breakfast to
clients going out to court, lunch if we had anyone in the area, who had come
back from court around one p.m. when clients would return to the institution from
court, and again around 4 p.m., and 7 p.m.
On a rare occasion we might have been sent on an escort.
Washroom was at a very close proximity to the counter to which we worked. (ie.
10ft to 15 ft)
For my meals I took them in the work area.
For a smoke break I just exited the door outside via admitting and discharge
area.
PROBATION AND PAROLE
Once arriving at work on the 3rd floor at Probation and Parole, counter duty, will
sit or stand at the counter in perform my duties, usually, I stand when admitting
client to probation, and or taking their name to advise the Officer of their arrival
for their appointment.
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Standing when filling out documents by hand during an intake, also searching
OTIS
Attend, to most of incoming phone calls, if not busy doing an intake.
Photocopy documents / receipts from clients for Probation Officer.
In some cases when the client has been waiting for some time, I will seek out the
Officer throughout the office to advise them in person. (on a weekly basis)
I also greet professional staff at the counter, I advise the person that is requested
by phone or as I do several occasion is seek out the requested person on foot
throughout the officer (square footage of work area appx. 120ft x 40ft =
4800sqft) to advise them that he / she is wanted at the counter/court room/or
elsewhere.
I retrieve the VWAP (victim witness assistant program) reports from the 4th, floor
approx. 5 to 10 mins. Which I have to wait for the elevator due to the doors are
locked from entering the 4th floor by way of stairs and then to distribute them to
the appropriate Officers, after searching for OTIS to determine the Officer.
Stamp envelopes on outgoing mail to clients.
Washroom in at probation office is at 30 ft or 40ft from my work area, if
washroom was busy then we had to use one in the hallway (public washroom)
again another 40ft to 50ft.
Escorting a client to the office of the Officer requested or to the office or Mr. Don
Billard. During intakes I also do a lot of photo copying documents to start a file on
said client, 3 copy machines in the area.
Job applicants I would escort them to the interview room.
Preparing documents for a PSR report and to distribute them to the appropriate
areas, one goes to the Attorney General on the 3rd floor, second one goes to the
second floor at the Criminal Court Counter, and third goes to the sixth floor to the
Judge’s Chambers for delivery by way of elevator or at times when they are
defective by way of stairs. (Elevators at the court house are often defective)
which taking the stairs is faster. Approx time /10 mins to 20 mins.
Distribute documents (breach, attorney general, etc.) that are left at the counter
to the appropriate Officer and or staff member.
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When supplies are low for intakes, I replenish them by way of photo copying
them. For a smoke break, I reported to the first floor. Move some boxes for the
support staff from one room to another.
Any breaks and or lunch, requesting a coffee or… First floor at Tim Horton.
Approx. Time / 5mins to 15mins.
Any corrections to Probation orders would have to go down on the second floor
to Court Support to have it corrected.
When supplies got low, I have to photocopy a bunch of them to replenish
supplies / some 16 different forms.
Parking...... To fill out a claim form to be refunded for the parking I pay in a
month.
Submission of the Union on the Orthotic Grievance
[5] Counsel for the union argued that the denial of Mr. Ranger’s claim for a second
pair of orthotics breached Article 39.2.7 of the collective agreement and the MOS
dated September 2010. He pointed to paragraph 10 of the MOS as critical,
noting that this paragraph provides that all the issues relating to Mr. Ranger’s
accommodation are fully and finally settled, except for “remedial issues regarding
lost wages, damages and other forms of compensation.” Counsel argued that
the claim for orthotics falls under “other forms of compensation.”
[6] In counsel’s submission, the grievor is still classified as a correctional officer.
Since correctional offers are entitled to two pairs of orthotics each year, so is the
grievor. The claim for a second pair of orthotics was denied by Manulife because
the grievor was not working in a correctional institution. Counsel submitted that
Mr. Ranger is still employed as a CO and remains part of his home institution.
The denial of this benefit is therefore contrary to the September, 2010, MOS and
the compensation order made in 2013.
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[7] The normal appeal process for denial of a benefit is to the Joint Insurance
Benefits Review Committee (JIBRC), but the parties have agreed that I have
jurisdiction because of the allegation of a breach of the MOS for which I remain
seized.
[8] In addition to the union’s main argument, counsel also argued that the grievor’s
evidence is clear that he does more walking and standing in his job at the Ottawa
Court House than he did as a CO in an institution. Thus, given the purpose of
orthotics, the grievor is entitled to a second pair.
[9] Finally, counsel emphasized the restorative nature of the compensation ordered
by the board in July, 2013, to make the grievor whole. If Mr. Ranger was still
working in an institution, he would receive the second pair. If I find that the denial
of the second pair of orthotics is a breach of the MOS or the collective
agreement, counsel asked me to remain seized on the issue of compensation for
the breach.
Submission of the Employer on the Orthotics Grievance
[10] Counsel for the employer argued that there was no breach of the September
2010 MOS. The agreement which formalized Mr. Ranger’s accommodation as a
Rehabilitation Officer in a position at the Ottawa Court House contained a full and
final release clause on the accommodation. Thus, it was argued, this claim is
barred by the release clause.
[11] Further, counsel argued that paragraph 5 specifies terms and conditions of the
accommodation. The paragraph provides that Mr. Ranger will be “entitled to the
following terms and conditions of employment as if he was a Regular
Correctional Officer in accordance with and subject to the applicable Collective
Agreement and applicable policies.” The only terms and conditions listed are
hours of work and pension benefits. Counsel contended that the parties could
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have included language that made it clear that the grievor was to be treated as if
he worked in a correctional institution. However, there is nothing in the MOS that
states this. It would not be appropriate to infer a benefit without express
language, in counsel’s submission.
[12] Moreover, counsel argued that the collective agreement provides the terms and
conditions of employment. Article 39.2.7 provides, amongst other benefits, 100%
reimbursement of the cost of orthotics, on certain conditions, up to a cost of
$500.00 per year. However, the article also provides that employees of
institutions shall be entitled to two pairs of orthotics, in certain conditions, up to
$500.00 per pair. The term ‘institution’ applies only to facilities defined under the
Public Service Act of Ontario, such as correctional institutions under Ministry of
Correctional Services Act (MCSA). The MCSA states that a correctional
institution means an institution established under section 14. There are currently
twenty-eight correctional institutions in Ontario. The term institution does not
include the Ottawa Court House. Therefore, Mr. Ranger is not entitled to a
second pair of orthotics. Only employees in correctional institutions are eligible
for it.
[13] Counsel relied on OPSEU and the Ministry of Training, Colleges and Universities
(Abramsky) GSB 1839/99 for the proposition that parties to a MOS are bound by
the clear language of the settlement argument. If an issue could have been
addressed in the agreement, but is silent, then the board should not rewrite the
language. Counsel also relied on Carey and the Ministry of the Solicitor General
and Correctional Services (Leighton) PSGB/0010/97 and Gottwald and the
Ministry of the Attorney General (Leighton) PSGB/0127/96.
Reply Submission of the Union on Orthotics
[14] Counsel for the union argued in reply that Article 39.2.7 provides entitlement to
employees ‘of’ institutions not ‘for’ those who work in institutions. Since the
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parties agreed that Mr. Ranger would remain classified as a CO, even though
assigned elsewhere, he should get the benefit. Counsel reiterated that the
central principle to consider is to make the grievor whole.
Submission of the Employer on Vacation Credits
[15] Counsel for the employer argued that I have no jurisdiction to grant the additional
vacation credits now sought by the union. He argued that I retained jurisdiction
at the end of the award to address any issue that might arise in implementing the
orders. However, in counsel’s submission this claim for vacation credits is not an
implementation issue. Rather, this is a claim for a new order of compensation
that was not put to me before the July 2013 decision. Counsel argued that the
law is clear that after the issuance of an award, a decision maker cannot address
a new issue. Furthermore, the July 2013 decision was final.
[16] Counsel submitted that there was a claim for vacation credits used to top-up
LTIP between 2002 and 2010 put before me and decided in July 2013. The
union sought 22 weeks of vacation credits. Counsel noted that I ordered the
employer to credit vacation actually used for top-up. The calculation came to
101.2 days or just over 20 weeks. These credits were put back in Mr. Ranger’s
vacation bank in September 2013.
[17] The claim before me now is for vacation credits that would have been earned
(but were not) when the grievor was on LTIP between 2002 and 2010. The claim
is for an additional 16 weeks. Counsel noted that the union is not claiming that I
missed the issue. Rather, it was not an issue that was put before me.
[18] Counsel noted that employees on LTIP do not accumulate vacation credits. Mr.
Ranger was on LTIP between October 2002 and November 11, 2004. He went
on LTIP again between March 2008 and January 2010.
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[19] Counsel also reviewed the decisions on the merits, on remedies, and several of
the memorandums of agreement between the parties agreeing to the process to
hear all the outstanding issues on remedy.
[20] Counsel relied on the following cases in support of his argument maintaining that
I have no jurisdiction to hear this claim: Elgin Abbey Nursing Home and Service
Employees Union, Local 210 (1999) 78 LAC (4th) 385 (Kirkwood); Ministry of
Municipal Affairs and Housing and Ontario Public Service Employees Union
(2010) 195 LAC 287 (Gray); Timberjack Inc. and Glass, Molders, Pottery,
Plastics and Allied Workers International Union, Local 446 (2000) 94 LAC (4th)
267 (Verity).
Submission of the Union on Vacation Credit Claim
[21] Counsel for the union submits there has been no final determination of the case.
He notes that at the end of the decision on the merits I remain seized of any and
all outstanding issues. The purpose of the award on remedies in 2013 was to
make the grievor whole. However, not all the issues have been addressed and
Mr. Ranger has not been made whole for a breach that made him ill.
[22] Counsel argued that Mr. Ranger was on LTIP because of a breach of his human
rights. But for this breach, he would not have been ill. However, because he
was on LTIP he did not earn vacation credits. Thus, in counsel’s submission, Mr.
Ranger should obtain the vacation credits lost while on LTIP between 2002 and
2010.
[23] Counsel for the union agreed with the employer’s submission that the claim for
vacation credits award in 2013 was for credits used for top-up LTIP. He
submitted that the claim now is for vacation credits not earned while on LTIP.
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[24] In counsel’s view the real issue before me is whether the decision on remedy in
July 2013 disposed of all remedies flowing from the breaches of the Code and
collective agreement. Counsel emphasized that paragraph 9 of the November
2010 MOS provided me with plenary jurisdiction to deal with all outstanding
issues up to the date of the MOS on November 12, 2010. In counsel’s view the
July, 2013, decision on remedies does not exhaust my jurisdiction. Further,
since the issue arose before November 12, 2010, it is a valid claim. Moreover,
he submitted that I retain the power to address this issue since I retained
jurisdiction on issues that might arise in implementing the orders made in the
July, 2013 decision.
[25] Counsel for the union submitted, in closing his argument, that I must not lose
sight of the original complaint and that the harassment and discrimination at
OCDC made Mr. Ranger ill. There is still a remedy that flows from the original
complaint. Since it is a different claim it should be allowed. Counsel concluded
that it is an appropriate remedy to make the grievor whole. Therefore he urged
me to order the lost vacation credits. Counsel argued that paragraph 9 of the
November 2010 MOS is a broad and unusual order to deal with exceptional
circumstances. In his submission, it ‘trumps’ the case law authority to the effect
that if you do not ask for a remedy at the outset, you are precluded from raising it
later.
Decision on Orthotics Grievance
[26] Having carefully considered the evidence and the submissions of the parties, I
have decided that I must dismiss the grievance. Further, I am not persuaded that
the employer has breached the September, 2010, MOS.
[27] After the release of the decision on the merits of Mr. Ranger’s grievances in
January of 2010, the parties worked diligently to resolve the outstanding issues
on remedy. The first significant MOS was achieved in September, 2010, and
provides the terms and conditions of a specially tailored accommodation for Mr.
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Ranger at the Ottawa Court House, in Probation and Parole. He was
permanently assigned to a Rehabilitation Officer 2 position. He remains
classified as a CO2 under the applicable collective agreement.
[28] The parties clearly addressed the issue of certain terms and conditions of Mr.
Ranger’s employment with the Ministry. Paragraph 5 provides:
The Parties agree that the Grievor will be entitled to the
following terms and conditions of employment as if he was a
Regular Correctional Officer in accordance with and subject
to the applicable Collective Agreement and applicable
Employer policies:
(c) Hours of Work: the normal hours of work
shall be forty (4) hours per week; and
(d) Pension benefits as applicable to Regular
Correctional Officers in accordance with
and subject to the applicable Pension Plan.
[29] This language addresses hours of work and pension benefits. I agree with the
employer’s argument that the parties could have addressed other terms and
conditions that apply to COs, but they did not. The agreement is silent on other
benefits that he might have got “as if he was a Regular Correctional Officer.” It
would be improper for me to read in the benefit of two pairs of orthotics when
there is no specific language to include it.
[30] There is also a comprehensive release clause included in the MOS at paragraph
10 that provides as follows:
For greater certainty, all actions, claims, causes of action,
grievances or complaints of any nature related to his
accommodation in the workplace are not to be re-filed,
disputed or pursued before the GSB or in any other forum,
save and except remedial issues before the GSB regarding
lost wages, damages and other forms of compensation. It is
further agreed by the Parties that any and all outstanding
obligations and entitlements concerning his accommodation
in the workplace are resolved upon the final signing of this
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Agreement, save and except remedial issues regarding lost
wages, damages and other forms of compensation.
[31] In my view this full and final release clause bars any claim for orthotics under the
MOS. The parties agreed to a full and final settlement of Mr. Ranger’s
accommodation, except for remedial issues, which were eventually put to me for
a decision.
[32] Further, the collective agreement provides the terms and conditions of
employment. The benefit of two pairs of orthotics per year is governed by Article
39.2.7. Employees in institutions are eligible for a second pair of orthotics,
inserts and/or shoes. Institutions are defined as, inter alia, correctional
institutions. Mr. Ranger does not work in a correctional institution; therefore he
was not entitled to a second pair. This is a bargained benefit and the language is
clear. That Mr. Ranger is on his feet more in his accommodated position, than
when he worked at OCDC, is immaterial. There is no assessment done by
Manulife on how long employees are on their feet at work, in order to grant the
benefit.
Vacation Credits Decision
[33] The issue here is whether my decision in July 2013 on remedies was final. I am
persuaded that it was a final and binding decision. The intent of the parties was
to deal with all of Mr. Ranger’s claims in a full and final decision. I was
specifically asked to retain jurisdiction after deciding on the merits of the
grievance and I did so. I was not asked to retain jurisdiction on outstanding
matters after hearing and deciding the arguments on remedies. I only remained
seized of any issues that might arise with the implementation of the orders that I
made at the end of the decision.
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[34] The November, 2010, MOS is significant. After considerable effort, the parties
agreed to a process of hearing all the remedial issues arising from the decision
on the merits of Mr. Ranger’s original grievance, decided in January 2010, but
also all outstanding claims that Mr. Ranger had up to the date of the MOS on
November 12, 2010. Paragraph 9 provides as follows:
The parties agree and jointly submit that for the purposes of
this proceeding, the GSB shall exercise its full authority in
finally and fully determining any and all outstanding claims,
grievances, disputes, complaints, actions and causes of
action concerning the Grievor up to the date of the signing of
this Agreement, including its Decision dated January 18,
2010 and the above-noted Grievances.
[35] I issued two further interim decisions on remedial issues, before hearing nine
days of submissions on what damages should be ordered. In an extensive and
thorough submission, the union claimed compensation for the grievor in
damages under the following: general, punitive, aggravating, pain and suffering
damages, special damages for out of pocket expenses, and future wage losses.
I addressed all the claims put to me during the nine days of argument which led
to my decision in July, 2013.
[36] The parties agree that the claim for accrued vacation credits was not made to me
previously. It is, as the employer argued a fresh claim, made after the decision
on the matters identified in the November, 2010, MOS. The union contends that I
can hear a fresh claim because of the powers agreed to in the November, 2010,
MOS. I am not persuaded that the power to hear all the outstanding issues
provided for in the November, 2010, MOS survived the decision on July 2013.
Further, I am not convinced that the claim for accrued vacation can be addressed
under retained jurisdiction for implementation of the orders. It bears no relation to
a problem in implementing the orders contained in the July 2013 decision.
[37] I am convinced that I am prevented from considering it now because of the well-
established principle that once a final award is issued, an arbitrator is functus
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officio with respect to the matter. Elgin Abbey, supra, is helpful on this point.
Arbitrator Kirkwood quotes from Brown and Beatty, quoting Arbitrator Weatherill
in the leading case on this principle from 1974 as follows:
Thus where an arbitrator has in his view issued a final and
binding award he is functus unless he has failed to
determine an issue which was specifically, submitted to him.
Moreover, in any subsequent decision an arbitrator may not
reinterpret his prior award nor may he expand the scope of a
previous award. Rather he is limited to simply completing
it… (p. 389)
[38] In sum, the parties intended the process agreed to in November, 2010, to lead to
a final and binding decision. In my view my decision in July, 2013, was a final
and binding award. The claim for accrued vacation is not one that I failed to
consider. I only reserved jurisdiction to assist if there was a problem with
implementation of any of the orders made in the decision.
[39] Accordingly, having carefully considered the evidence and submission of the
parties, I must conclude that I have no jurisdiction to entertain the claim for
accrued vacation credits. The employer’s motion to dismiss this complaint is
granted.
Dated at Toronto, Ontario this 23rd day of December 2015.
Deborah J.D. Leighton, Vice Chair