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HomeMy WebLinkAbout2013-3800.Grievor.16-08-19 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#2013-3800, 2013-3801, 2014-0163, 2014-0752, 2014-3041 UNION#2014-0533-0002, 2014-0533-0003, 2014-0533-0009, 2014-0533-0020, 2014-0533-0034 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Christopher Albertyn Vice-Chair FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Benjamin Parry Treasury Board Secretariat Legal Services Branch Counsel CONFERENCE CALL July 25, 2016 - 2 - Decision [1] For reason that will become apparent, and at the request of the parties, the Grievor is not named in this decision. [2] The Grievor was terminated from employment by the Ministry on September 3, 2014. He grieved the termination. A med-arb resulted in a Memorandum of Settlement (“the settlement agreement”) being concluded between the Employer, the Union and the Grievor on November 17, 2014. I was seized to address any dispute arising between the parties from the implementation of the settlement. [3] A dispute has arisen. [4] In the settlement agreement there was no admission of liability by the Ministry, nor was there any admission of wrongdoing by the Grievor. Among other relief, a sum was to be paid to the Grievor by the Ministry in two instalments, one in 2014, the other in 2015, in consideration of terms agreed in the settlement agreement. [5] One of those terms was that the parties agreed to abide by a confidentiality provision: The Parties agree to keep paragraphs 8-11 of this agreement in confidence and agree not to disclose those terms except to the Grievor’s immediate family, professional advisors, as required by law, and to allow the Employer to effect the terms of the settlement; [6] Part of the settlement was that the Grievor’s termination was changed to a resignation. The settlement included a provision that the Ministry would issue an internal communication to all employees where the Grievor had worked advising that he would not be returning to the workplace, that the Ministry regretted the loss of his skills and services, and that he had resigned to pursue other opportunities. - 3 - [7] The Ministry complied with this undertaking and, to all the world, it appeared that the Grievor had left his employment of his own volition to pursue other opportunities. [8] The effect of the payments was to put the Grievor’s gross earnings from the Ministry over $100,000 in 2014, and at $100,000 in 2015. Normally his pay grade would not have had him in Ontario’s sunshine list, but he appeared in both the 2014 and 2015 lists, with details of his substantial earnings relative to his usual pay level. [9] On March 21, 2016 the Grievor was given written notice that his 2015 earnings of $100,000 would appear on the 2015 sunshine list pursuant to the Public Sector Salary Disclosure Act, 1996, S.O. 1996, c. 1, Sched. A (“the Act”). He was advised that, if he had any questions, he could contact a particular individual. He did so. He explained that the payments to him under the settlement agreement had to be kept confidential and that they should not appear on the sunshine list. Despite this conversation, the details of the Grievor’s earnings appeared on the sunshine list. [10] Once the 2015 sunshine list was published in 2016 some of the Grievor’s colleagues, who had received the Ministry’s internal communication that the Grievor had resigned, made prying inquiries of him as to how, when he had resigned, he managed to make the sunshine list in both 2014 and 2015, particularly as he ostensibly resigned in November 2014. Given the Grievor’s obligation to maintain the confidentiality provision of the settlement agreement and the public communication that he had resigned, the Grievor had difficulty explaining his circumstances and why it was that he had earned so much money. [11] The same occurred with the Grievor’s new employer. The Grievor secured fresh employment soon after his resignation from the Ministry. He had worked for some time for his new employer, when in 2016, upon seeing the sunshine list for 2015, the new employer asked the Grievor how he had managed to earn $100,000 from the Ontario Government when he had been working full-time for his new employer. Again, the Grievor had difficulty explaining himself. - 4 - [12] The Union and the Grievor see the publication on the sunshine lists as a breach by the Ministry of the confidentiality provision of the settlement agreement. They say the Employer should never have included the two payments as income that elevated his earnings into the sunshine list, two years in a row. They say the failure by the Ministry to stop publication of the information constitutes a breach of the confidentiality provision of the settlement, and that reparation is needed. The Union relies on the following decision, which stresses the importance of all parties complying with the confidentiality obligations they undertake in settlement agreements because the fulfilment of those obligations is critical “to the proper functioning of labour relations and grievance administration”: Ontario Public Service Employees Union v. Ontario (Ministry of the Attorney General), 2004 CanLII 55317 (ON GSB) (Abramsky). [13] The Ministry acknowledges that compliance with confidentiality provisions in settlement agreements is of critical importance. It submits that its action in publishing the Grievor’s earnings on the sunshine list was “required by law”, something that was specifically contemplated by the parties when the parties concluded the settlement agreement. Consequently, it argues, there was no breach by the Ministry. [14] The Ministry argues that the payments to the Grievor disclosed on the sunshine lists were salary from employment, which, under the Act, the Ministry was obliged to disclose. The relevant provision is the following: Public disclosure 3. (1) Not later than March 31 of each year beginning with the year 1996, every employer shall make available for inspection by the public without charge a written record of the amount of salary and benefits paid in the previous year by the employer to or in respect of an employee to whom the employer paid at least $100,000 as salary. Contents of record (2) The record shall indicate the year to which the information on it relates, shall list employees alphabetically by surname, and shall show for each employee, (a) the employee’s name as shown on the employer’s payroll records; - 5 - (b) the office or position last held by the employee with the employer in the year; (c) the amount of salary paid by the employer to the employee in the year; (d) the amount of benefits reported to Revenue Canada, Taxation, under the Income Tax Act (Canada) by the employer for the employee in the year. [15] The Ministry says that the money the Grievor received under paragraph 8 of the settlement agreement, which was published on the sunshine lists, was “salary” as defined under the Act. The definition of salary is the following: “salary” means the total of each amount received by an employee that is, (a) an amount required by section 5 of the Income Tax Act (Canada) [Income Tax Act, RSC 1985, c 1 (5th Supp)] to be included in the employee’s income from an office or employment, (b) an amount deemed by subsection 6 (3) of that Act to be remuneration of the employee for the purposes of section 5 of that Act, or (c) an amount received by the employee by reason of his or her right to receive a deferred amount under a salary deferral arrangement referred to in subsection 6 (11) of that Act; [16] The parties stated in the settlement agreement that the amount the Grievor was to receive in paragraph 8 of the settlement agreement (which appeared on the sunshine lists), would be subject to “all applicable deductions”, being income tax, CPP, and union deductions. [17] The relevant provisions of the Income Tax Act, reads: Income from office or employment 5 (1) Subject to this Part, a taxpayer’s income for a taxation year from an office or employment is the salary, wages and other remuneration, including gratuities, received by the taxpayer in the year. … - 6 - Payments by employer to employee 6 (3) An amount received by one person from another o (a) during a period while the payee was an officer of, or in the employment of, the payer, or o (b) on account, in lieu of payment or in satisfaction of an obligation arising out of an agreement made by the payer with the payee immediately prior to, during or immediately after a period that the payee was an officer of, or in the employment of, the payer, shall be deemed, for the purposes of section 5, to be remuneration for the payee’s services rendered as an officer or during the period of employment, unless it is established that, irrespective of when the agreement, if any, under which the amount was received was made or the form or legal effect thereof, it cannot reasonably be regarded as having been received o (c) as consideration or partial consideration for accepting the office or entering into the contract of employment, o (d) as remuneration or partial remuneration for services as an officer or under the contract of employment, or o (e) in consideration or partial consideration for a covenant with reference to what the officer or employee is, or is not, to do before or after the termination of the employment. [18] The Union submits that the payments made to the Grievor were made when he was no longer an employee. The payments occurred when he had ceased to be an employee. Although the payments arose out of his employment, or the termination of his employment, the payments could not be salary because they were made to him when he was no longer an employee. [19] I am not persuaded by this. The parties understood that the deductions from the payments were either, or both, because the Grievor was receiving “income from an office or employment”, as contemplated under s. 5(1), or as remuneration under s. 6(3) of the Income Tax Act. [20] Such a payment of income from an office or employment had to be disclosed under s. 3 of the Act. That meant that the Employer was “required by law”, as - 7 - contemplated under the settlement agreement, to make the disclosure. Accordingly, the exception in the confidentiality provision applied and there was no breach of it by the Ministry. [21] The Employer also argues that s. 6 of the Act protects its disclosure because the disclosure was made “in the reasonable belief that the disclosure” was required by the Act. Section 6 reads: Disclosure not breach of any Act or agreement 6. The disclosure of information in accordance with this Act, or in the reasonable belief that the disclosure is required by this Act, shall not be deemed by any court or person, (a) to contravene any Act or regulation enacted or made before or after the coming into force of this Act; or (b) to be in breach of or contrary to any agreement that purports to restrict or prohibit that disclosure regardless of whether the agreement is made before or after the coming into force of this Act. [22] In addition, s. 6(b) of the Act also applies in that the disclosure was made by the Ministry “in the reasonable belief” that it was required by the Act. [23] In the circumstances, I find there is no breach of the settlement agreement by the Employer. Accordingly the request for relief is denied. Dated at Toronto, Ontario this 19th day of August 2016. Christopher Albertyn, Vice Chair