HomeMy WebLinkAbout1994-2624.Montgomery.99-02-03
ONrARIO eMPLOYES De LA COURONNE
CROWN EMPLOYEES De L'ONrARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (41(5) 3215-1388
180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSfMfLEfTELECOPIE (4115) 32/S-13lXJ
GSB # 2624/94, 2625/94
OPSEU # 95C376, 95C418
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(MontgomerylRankIn)
Grievors
- and -
The Crown m RIght of Ontano
(Mimstry of Health -
Ottawa-Carleton RegIOnal Ambulance ServIce)
Employer
BEFORE H.S Fmley Vice-ChaIr
J C LanIel Member
D.M.Clark Member
FOR THE T McEwan
GRIEVORS Counsel, Gowlmg, Strathy & Henderson
BarrIsters & SolICItors
FOR THE D Chondon
ElVIPLOYER Counsel, Mathew, Dmsdale & Clark
BarrIsters & SolICItors
HEARINGS June 8, 1998
June 24, 1998
August 7, 1998
GSB 2624/94, 2625/94
SUPPLEMENTARY AWARD
RESPECTING IMPLEMENTATION
On July 28, 1997, the Gnevance Settlement Board Issued the Panel's decIsIOn
respectmg the ments of thIs case The Gnevors were remstated to theIr posItIOns as ambulance
officers WIth the Ottawa-Carleton RegIOnal Ambulance ServIce (OCRAS) The Panel ordered
the followmg remedy
In the result, Mr Rankm and Mr Montgomery are to be remstated to full duties Immediately with
no loss of seniority or benefits, and they are to receive compensation from the time of their
suspenSIOn to their reinstatement WIth interest at 7 49 % (which is the average prime rate for the
penod begmnmg January 1, 1995 and ending May 31, 1997 - 6 49 + 1 %) Mr Montgomery IS
to have a letter ofwarnmg placed m his file for a period of 1 year, m which his duties as an
Ambulance Officer respectmg his role m call locatIOn are set out. The letter is to be removed after
one year One of the major Impacts that the dismissals have had on Mr Montgomery and Mr
Rankin IS the delay in their undertaking trainmg as Paramedics. The Board orders therefore, that
they be permitted to resume therr progress through that program from the point at which they were
forced to abandoned It and that they continue the program, provIding they meet the qual1ficatlOns
as they progress, at the earliest possible time following their reinstatement. The Board will remain
seised to asSISt the partIes m the event that they experience difficulty with the Implementation of
thIS decision.
The Gnevors, John Montgomery and Blake Rankm, had been remstated m 1995 on an mtenm
baSIS under s 45 (8) (4) of the Labour Relations Act, amended 1994, whIch gave arbitrators the
"power"
to grant such intenm orders, mcluding mtenm relief, as the
arbItrator or arbitratlOn board considers appropnate.
The follOWIng year, amendments to the Labour Relations Act restncted the power of arbItrators
to grant mtenm relIef to that of makmg "mtenm orders concemmg procedural matters"
48 (13) An arbItrator or the charr of the arbitration board shall not make an interim order under
clause (12) (I) requITing an employer to reinstate an employee m employment.
Because of thIs WIndow of mtenm relIef, the Gnevors benefitted from employment dunng the
penod of the determmatIOn of the ments of theIr SItuatIOn, and the Employer benefitted from the
penod of the determmatIOn of the ments of theIr SItuatIon, and the Emplover benefitted from the
servIces of two expenenced ambulance officers. Had the mtenm relIef not been aVaIlable, the
Employer would have been paymg the employees followmg theIr remstatement for a much
longer penod of trme WIthout the benefit of theIr servIces and the Gnevors would, m all
probabIlIty, have had a longer and more dIfficult penod before the Board Issued ItS decIsIOn on
the ments.
A bnef outlIne of the hIstory of thIs case follows As a result of an mCIdent on December 9,
1994, whIch was the Gnevors' last dav of work pnor to mtenm remstatement, Mr Montgomery
and Mr Rankm were suspended WIth pay on December 15, 1994 They were subsequentlv
dIsmIssed on March 7,1995, remstated on an mtenm basIs on September 1, 1995 (although for
schedulmg reasons theIr first day of work took place on September 5th), and were ultlffiately
fully remstated by an order of the Gnevance Settlement Board dated July 28, 1997
FollOWIng theIr full remstatement, the Ottawa-Carleton RegIOnal Ambulance ServIce, (OCRAS),
m order to comply WIth the finanCIal aspect of the Board's order, calculated the amount OWIng to
the Gnevors. There was no eVIdence that the partIes had dISCUSSIons respectmg the calculatIOns
pnor to thIs It then sent ItS calculatIon to-the Mirustry of Health, CORPA Y m Toronto
CORPA Y applIed the deductIOns and Issued a hand-drawn cheque on May 28, 1998 The funds
were Issued to the Gnevors on June 11, 1998 These cheques were based on the amount the
Employer (OCRAS) consIdered was OWIng to the Gnevors under the Gnevance Settlement
Board's deCISIOn, mmus regular deductIOns and Employment Insurance payback payable to
CollectIOn ServIces (Federal Government) The gross amount Issued to each Gnevor was
$ 20,008 96 Interest was paId to the Gnevors on theIr regular pay cheques dated June 11, 1998
m the amount of $1498 67 A detaIled breakdown of the deductIons was part of the eVIdence
whIch was subrrntted. NeIther the mdIvldual who prepared the calculatIOn at OCRAS, nor the
mdlvldual who dId the calculatIOn at CORP A Y appeared before the Panel. Mr Massender, the
Manager of OCRAS gave eVIdence WIth respect to the calculatIOns and the resultmg figures
2
In 1998, several months after the remstatement of the Gnevors, the partIes contmued to be
unable to fmallze the fmanclal aspect of the Board's declSlon, and, as the Panel had remamed
seIsed to asSISt the partIes WIth ImplementatIOn, should that be requITed, It was requested that a
heanng be held to resolve thIs matter The heanng was duly held m June and August, 1998
The follOWIng areas of clarm were presented to the Panel
. Statutory HolIdays & Time
. DIsmIssal Time
. Salary Note
. ShIft Premmm
. Overtlffie
. PenSIon
. Health Benefits
. ParamedIc Salary Notes
. ParamedIc Trarrung
. 5 8% Retro A ward
. VacatIon Owmg
. Interest
. Gross-up for Adverse Tax Consequences
. T4-1995
. Proof of Payment for Employment Insurance and PenSIOn Fund
It was the understandmg of the Panel that thIs lIst constItuted the total remedIal clarm for Mr
Montgomery and Mr Rankm, and that theIr respectIve clarms were, for the most part, Identlcal
Some of the Issues had been agreed to m advance, others were clanfied and resolved by the
partIes dunng the heanng days, and by the tIme the matter was finally left WIth the Panel for ItS
deCISIOn, the number of Items on the above lIst had been consIderably reduced.
Pnor to the heanng, the Employer had pard the followmg amounts to the Gnevors and to other
agencIes on theIr behalf
"
.J
Mr RankIn
Gross Pay $20,008.96
Reduced by Mitigation [$ 15 60]
Payments made to others by the Employer on Mr Rankin's behalf:
E.I Repayment $ 9,26000
Income Tax $ 3, 83846
Canada PensIOn Plan $ 492 63
Uruon Dues $ 259 83
PensIOn Plan ContnbutIOn $ 1,07046
Supplementary Health and VISIOn Care $ 1800
Employment Insurance Premmm $ 588 57
Contributions made by the Employer for Mr Rankin's benefit:
Health and VIsIOn Care $ 328 86
Urudentlfied (014) $ 277 08
Umdentlfied (132) $ 390 82
Canada PenSIOn Plan $ 492 63
Umdentlfied (010) $ 3348
PensIOn $1,27053
UmdentIfied (085) $ 766 83
Total $ 3, 560.23
Payments made by the Employer to Mr Rankin
Wages ($ 4,481 41 - $15 60) [pard June 11, 1998] $ 4,465 81
Cheque re Health Benefits [pard May 13, 1998] $ 808 40
Interest [pard June 11, 1998] $ 1, 498 67
Retroactlve shIft premIum [pard May 28, 1998] $ 6552
RetroactIve shIft premIum [pard May 28, 1998] $ 468 72
RetroactIve HolIday Pay [pard May 28, 1998] $ 2, 637 90
RetroactIve OvertIme Pay [paId May 28, 1998] $ 1,58274
All other [pard May 28, 1998] $ 3, 063 14
($2462.04 (vacatIOn owmg) +$ 601 10 (interest for lIsted Items))
Salary Note ($34 40 x 5) [pard date unknown] $ 172 00
4
Mr Montgomery
Gross Pay $20,008.96
Reduced by Mitigation [$ 4,750.28]
Payments made to others by the Employer on Mr Montgomery's behalf
E.I Repayment $ 3, 440 00
Income Tax $ 3, 838 46
Canada PenSIOn Plan $ 492 63
Umon Dues $ 259 83
PensIOn Plan ContnbutIOn $ 1,07046
Supplementary Health and VIsIOn Care $ 1800
Employment Insurance PremIum $ 588 57
Contributions made by the Employer for Mr Montgomery's benefit:
Health and VIsIOn Care $ 328 86
U mdentIfied $ 277 08
UmdentIfied $ 390 82
Canada PenSIon Plan $ 492.63
UmdentIfied $ 3348
PensIOn $ 1,27053
UmdentIfied $ 766 83
Total $ 3, 560.23
Payments made by the Employer to Mr Montgomery.
Wages ($10,301 01- $4750.20 (mItlgatIOn) [pard June 11, 1998] $5,55081
Cheque re Health Benefits [pard May 13,1998] $ 808 40
Interest [pard June 11, 1998] $ 1, 498 67
RetroactIve shIft prerrnum [pard May 28, 1998] $ 6552
RetroactIve shIft prerrnum [pard May 28, 1998] $ 468 72
RetroactIve HolIday Pay [pard May 28, 1998] $ 2, 637 90
RetroactIve OvertIme Pay [pard May 28, 1998] $ 1, 582 74
RetroactIve Gnevance Settlement A ward [pard May 28, 1998] $ 2, 618 36
[UmdentIfied- may be vacatIOn owmg]
All other [UmdentIfied] [pard May 28, 1998] $ 612.80
[May be mterest on lIsted Items]
[UmdentIfied-may mclude vacatIOn OWIng]
Salary Note ($34 40 x 5) [pard - date unknown] $ 172 00
5
The Panel mtends to deal WIth each of the areas presented, confirmmg WIthdrawals and
agreements and rendenng a deCISIOn m the few mstances m whIch a dIspute remarned. The Panel
regrets that It IS unable to provIde a fmal calculatIOn figure It notes that the CollectIve
Agreement m effect at the trme was the green one (January 1, 1992 to December 31, 1993)
1 Statutory Holidays & TIme (In dIspute)
The penod oftlme covered was from December 15,1994 (date of suspensIOn) to September 5,
1995 (date of mtenm remstatement) The partIes agreed that the hourlv rate at that tIme was
$1954, that the workday was 8 hours, and that the Gnevors were pard bI-weekly on the regular
basIS of 80 hours. They concluded that the Gnevors were to receIve compensatIOn for the
statutory holIdays dunng thIs penod. They further agreed that workmg on a statutory holIdav
attracted a double rate + eIther pay for an eIght-hour day, or a day off. They determmed that thev
would only consIder the pay for an eIght-hour day and would not consIder the day off. The Issue
was whether or not the Gnevors had received the total compensatIOn due to them under thIs
headmg m the compensatIOn already rendered. It was the Employer's pOSItIOn that they had, and
the Umon's pOSItIOn that $781 60 was stIll OWIng under the headmg of "Statutory HolIday &
Time" - "days off' The Gnevors receIved $20,008 96 gross under "DIsmIssal Time" and
$263790 under "Statutory HolIday & Time The total amount clalffied by the Umon under the
headmg of "Statutory HolIdays & Time IS $3419 50 ($2637 90+$781 60)
The Issue, accordmg to Mr McEwan, Counsel for the Uillon, IS "whether, over and above actual
pay for work, the Gnevors would have receIved payor tIme off" In presentmg hIS argument, he
CIted ArtIcle 19.2. Mr Chondon, Counsel for the Mimstry, submItted that the ma;.nmum
amount an mdIvIdual can receIve IS 3 tImes a regular day's pay; that IS, one day's pay + If you
work It, the eqUIvalent of2 days' pay Mr Chondon stated that whIle Mr McEwan had
submItted the 5 "days" m questIOn as "days off', whIch should be pard over and above the
6
regular bI-we.eklv pay, Nlr Massender, the Manager of OCRAS, testIfied that because of the
way the "DIsmIssal Time" (see below) had been calculated - 80 hours every 2 weeks - the
Gnevors had already been compensated for those days "at the regular rate" under that headmg,
and to accept the Umon's argument, would, m effect, compensate the Gnevors at the rate of 4
tImes pay for statutory holIdays, whIch IS not contemplated by the CollectIve Agreement. The
MIillStry'S pOSItIOn IS conSIstent, he submItted, WIth the practIce when the Gnevors were
suspended WIth pay If the Umon's pOSItIOn remarns that they are stIll entItled to a day off, then
It IS a day off WIthout pay, otherWIse, the SItuatIOn becomes a 4-tImes-payment SItuatIOn.
In the compensatIon for holIdays, the partIes have chosen to treat the SItuatIOn as If the Gnevors
had worked on the followmg holIdays December 26th, 1994 (Boxmg Day), January 1st (New
Years Day) , Apnl17th, (Easter Monday), August 7th (CIVIC HolIday), and as If they had been
called m on September 4th, 1995 (Labour Dav) All days are holIdavs under ArtIcle 48 of the
CollectIve Agreement. If the Gnevors dId not work on the Statutory HolIday, they were to be
pard as If they had worked a regular day If the Gnevors worked on the holIday they were to be
pard "at the rate of two (2) tlmes [their] baSIC hourly rate for all hours worked" + ArtIcle 19.2
states that when they work on a Statutory HolIday they should also receIve eIght (8) hours pay, or
eIght (8) hours compensatmg leave, provided the employee opts for compensatmg leave pnor to
the holIday The partIes were only consldenng the pavment optIOn. In the pay slIps Issued to
them dated May 28, 1998 the followmg Item IS set out
"RT-HOLPA Y [RetroactIve HolIday Pay] 67 50 [Hours] 263790 [Gross Amount]
It was explamed that thIs was made up of67 50 hours x 2 (double tIme) = 135 hours x 19 54 =
$263790 No explanatIon was offered as to how 67 50 hours was arnved at and unfortunatelv,
the Panel dId not enqUIre
"REG PAY' (Regular Pay) IS a constant amount. The pay slIps for both Gnevors of June 11,
1998, July 23,1998, August 20,1998 and October 15, 1998 show the constant figure of
$1,563.20 (gross) bI-weekly under that headmg
7
The dispute is not about whether or not the Grievors should be paid for the eight-hour
'premium' under Article 19.2, but whether or not they have been paid, for it. The partIes
presented as ards to understandmg, the headmgs cIted above and the compensatIOn thereunder
However, m the case of "Statutory HolIday & Time" and "DIsmIssal Time" the Panel
determmed that the most sensible approach was to apply the facts and the CollectIve Agreement,
and whIle consIdenng the Issue, to dIsregard, for the purpose of calculatIOn, the amounts whIch
had been agreed to by the partIes, smce, there was confusIOn m the relatIOnshIp of Items
"Statutory HolIday & Time" and "DIsmIssal Time" and m the eVIdence The Panel's approach
and resultmg calculatIOn follows.
The Collectlve Agreement addresses payment for holIdays m ArtIcle 19
ARTICLE 19
19 1 Where an employee works on a holiday included under Article 48 (Holidays),
he shall be paid at the rate of two (2) times his basic hourly rate for all hours
worked with a minimum credit of seven and one-quarter (7-1/4), eight (8) , or
the number of regularly scheduled hours, as applicable.
19.2 In addition to the payment provided by section 19 1, an employee who works on
the holiday shall receive either seven and one-quarter (7 1/4) or eight (8) hours
pay as applicable at his basic hourly rate or compensating leave of seven and
one-quarter (7 1/4) or eight (8) hours as applicable, provided the employee opts
for compensating leave pnor to the holiday
19.3 It IS understood that sections 19 1 and 19.2 apply only to an employee who IS authorized
to work on the holiday and who actually works on the holiday, and that an employee
who, for any reason does not actually work on the holiday shall not be entitled to the
payments described herein.
194 When a holiday included under Article 48 (Holidays) comcides with an employee's
scheduled day off and he does not work on that day, the employee shall be entitled to
receive another day off.
19.5 Any compensating leave accumulated under sections 19.2 and 19 4 may be taken off at a
time mutually agreed upon. Failing agreement, such time off may be taken in
conjunction with the employee's vacation leave or regular day(s) off, If requested one (1)
month in advance.
196 Any compensating leave accumulated under sections 19.2 and 19 4 in a calendar year
which is not used before March 31 of the following year shall be paid at the rate it was
earned. Effective March 1, 1978, the March 31 date may be extended by agreement at
the local or mmistry level.
8
197 N otwlthstandmg anythmg m Article 19, employees who are m classlficatlOns assigned to
Schedule 6 and who are required to work on a holiday included m Article 48 (Holidavs)
shall receive equivalent time off.
ArtIcle 14 sets out the terms of "call-back"
ARTICLE 14
14 I an employee who leaves hIs place of work and is subsequentlv called back to
work prior to the startmg time of hIS next scheduled shift shall be paid a
mmimwu of four (4) hours' pay at one and one-half (1-1/2) times his basic
hourly rate.
The follOWIng are the Statutory HolIdays WhICh would not have been worked bv the Gnevors
between December 15,1994 and September 4,1995, mclusIve
. 1994 December 25 10 hours
. 1995 Apnl 14 10 hours
. 1995 May 22 10 hours
. 1995 July 03 12 hours
. 1995 September 04* 10 hours (12)**
. Total number of hours 52 hours (54)
. Total number of days 5 days
*If the Grievors were called m or subject to call-m or call-back on September 4 1995, they would not have been
scheduled to work the statutory holiday
** The Panel dId not have the mformatlon on whether the September 4, 1995 would have been a 10- or a 12-hour
workday
The Gnevors should have receIved Regular Pay for the Statutorv HolIdays whIch they did not
work. ThIS was pard at the rate of $1954 per hour for 52 (54) hours as part of theIr regular 80-
hour bI-weekly pay WhICh was covered under the "DIsmIssal Time" payment of $20,008 96
ThiS was part of the category covered by the hand-drawn cheques m the amount of$10,301 01
for Mr Montgomery and $4,481 01 for Mr Rankm.
($1 01608 gross) ($ 1,055 16 gross)
9
The folloWIng Statutory HolIdays would have been worked by the Gnevors between December
15, 1994 and September 4, 1995 * (call m), mclUSIve
. 1994 December 26 10 hours
. 1995 January 01 12 hours
. 1995 Apnl 17 10 hours
. 1995 August 07 10 hours
. Total number of hours 42 hours
. Total number of days 4 days
*Payment for Statutory HolIdays worked comes under 3 headmgs
. Article 19 1 Regular Pay at $19.54 an hour
. Article 19 1 Premium Pay at the rate of $19.54 for the number of hours
worked.
. Article 19.2 Premium Pay at the rate of $19.54 for, in the case of the
Grievors, an eight-hour day
FIrst, the Gnevors would have receIved, under Article 19 I-regular pay at $19.54 an hour for
the statutory holIdays they dId work. ThIs was pard at the rate of$19 54 per hour for 52 (54)
hours as part of theIr regular 80-hour bI-weekly pay WhICh was covered under the "DIsmIssal
Time" payment of $20,008 96 ThIs was part of the category covered by the hand-drawn
cheques m the amount of$10,301 01 for Mr Montgomery and $4,481 01 for Mr Rankm.
($82068 gross)
Second, under "Article 19 1 - premium pay at the rate of $ 19.54 for the number of hours
worked", the Gnevors should have receIved compensatIon at the hourly rate of $19 54 for 42
hours ThIs would not have been part of the bI-weekly 80 hour Regular Pay It IS the
understandmg of the Panel that thIS would be pard out under the headmg ofRT-HOLPA Y and
that It would be part of the $2,637 90 already pard.
($82068 gross)
ThIrdly, under Article 19.2- premium pay at the rate of $19.54 for an eight-hour day, the
Gnevors should have receIved the premIum payment of $19 54 per hour for 4 days of 8 hours
10
each, or $19 54 per hour for 32 hours It IS the understandmg of the Panel that thIs would have
been pard out under the headmg ofRT-HOLPA Y and that It would be part of the $2,637 90
already pard.
($625.28 gross)
On the follOWIng Statutory HolIday whIch the Gnevors would not have worked, they were,
nonetheless, slated for" call-m"[call back] whIch IS governed by ArtIcle 14, supra
. 1995 September 04 4 hours (call m)
Total hours 4
Total days 1
Under 14 1 thIs IS payable at "one and one-half (1-1/2) tImes hIs basIc hourly rate" whIch equals
$19 54 x 1-1/2 = $29.31 per hour and $117.24 for the four-hour mImmum. ThIs would have
been payable under the headmg ofRT-HOLPA Y and would be part of the $263790 already
pard.
($11724 gross)
The amounts payable are, m summary, the followmg
Category Hours Gross amount
. HolIdays not worked 52 (54) $1,01608 - ($1,055 16)
Regular Pay
. HolIdavs worked
Art 19 1 Regular pay 42 $ 820 68
. HolIdays worked
Art. 19 1 PremIum 42 $ 820 68
. HolIdays worked 32 $ 625.28
Art 19.2 PremIum
. Call back
September 4, 1995 4 $ 117.24
. Total $3399 96 ($343904)
Of thIs total, $1,83676 ($1016 08 + $82068) [$1875 84 ($1055 16+ $82068)] would have
been pard out as part of the bI-weekly 80-hour regular pay (REGPA Y) ThIs would have been
11
mcluded m the calculatIOn of the "DIsmIssal Time" figure of $20, 008 96 (gross) and m the hand
drawn cheques of$10,301 01 (net) for Mr Montgomery and $4,481 01 (net) for Mr Rankm.
The balance of$1,563.20 ($820 68 + $625.28 + $117.24) would have been pard out under RT
HOLPAY
The Employer pard out $2,63790 under the headmg of"RT HOLP A Y The Umon was askmg
for $3419.50 under the headmg of "Statutory HolIdays & Time" NeIther party assIgned an
amount under REGP A Y to Statutory HolIdavs The Panel recogillzes that there IS a dIscrepancv
between Its figures and those of the partIes but It does not have suffiCIent mformatIOn to
determme where the dIscrepancy has occurred between Its final amount and the amount
calculated by the Employer The Panel IS of the opImon that no further momes are owmg to the
Gnevors under thIs headmg If the partIes agree that the reasomng and the calculatIOn provIded
by the Panel are correct, then the Panel's calculatIOn should prevarl If they do not, then the
amounts pard to the Gnevors thus far, under the headmgs of "Statutory HolIdays & Time" and
"DismIssal Time", should stand.
2 DIsmIssal TIme - (In dIspute WIth respect to Statutory HolIdays)
The partIes agree that 2 weeks of pay of 80 hours IS "standard pay" It IS the understandmg of
the Panel that the parties also agree that the Gnevors have been compensated under thIS headmg
based on what they would have receIved m "regular salary" from March 8, 1995 (effectIve date
of dIsmIssal) to September 1(5),1995 (date ofmtenm remstatement), on the baSIS of80 hours
every 2 weeks, plus the fractIOnal portIOn at eIther end. Although the partIes say thev are m
agreement WIth the amount the Mimstry has pard to the Gnevors under thIs headmg that IS
$20,008.96, they have not agreed on precIsely what thIs payment encompasses The Mimstry
states that It mcludes the payment for the five ArtIcle 19.2 days and the Umon contends that It
does not. Mr Chondon stated that thIs mcludes "stats, at the regular rate, not the premIum rate"
12
ThIs IS the only specIfic dIsagreement whIch has come to lIght under thIs headmg If the partIes
agree that the Panel's reasonmg and calculatIOn under that headmg are correct, they should make
the appropnate adjustments to the calculatIOns under thIs headmg If anv are reqUIred. If thev do
not agree, then the amount under thIs headmg of $20,008 96 gross, should stand.
3 Salary Note - (Not III dIspute)
The partIes agree that the trme penod for thIs Item extends from December 9, 1994 to March 8
1995, the amount per pay penod IS $34 40 and there are 5 such pav penods ThIS amount of
$172 00 has already been paId to each Gnevor and there IS no dIspute over thiS Item.
4 ShIft PremIUm - (In dIspute)
ThIS Issue IS addressed m the CollectIve Agreement m ArtIcle 11
11 1 1 EffectIVe January 1 1992, an employee shall receIve a shIft premium of fifty-
two cents (52t) per hour for all hours worked between 5 00 p.m. and midmght.
Where more than fifty percent (50%) of the hours worked fall wlthm thIS period,
the fifty-two cents (52t) per hour mmimum shall be paId for all hours worked.
11 1.2 Effective January 1, 1992, an employee shall receIve a shift premIum of SIXty-
two cents (62t) per hour for all hours worked between mIdnight and 7'00 a.m.
Where more than fifty percent (50%) of the hours worked fall WIthin thIS penod,
the SIXty-two cents (62t) per hour premIUm shall be paid for all hours worked.
11.2 Notwlthstandmg 11 I I and II 1.2, where an employee s hours of work
normally fall WIthin 7'00 a.m. and 5'00 p.m., the employee shall not be entitled
to receIve a shIft premium for hours worked between 5 00 p.m. and 7'00 a.m
11.3 Shift premIUms shall not be considered as part of an employee s baSIC hourly
rate.
114 ShIft premium shall not be paid to an employee who for mutually agreed upon
reasons works a shift for whIch he would otherwIse be entitled to a shift
premIUm.
The Umon takes the pOSItIOn that ShIft premIum IS payable from December 9, 1994 (date of the
mCldent and the Gnevors' last day of work pnor to mtenm remstatement) to July 28,1997 (date
of permanent remstatement) ThIs penod amounts to 2 years and 8 months, or 32 months j'ylr
Rankm and Mr Montgomery clarm the follOWIng
13
14 hours at $052 per hour tImes 32 months $ 232 96
84 hours at $062 per hour tlffies 32 months $1,66656
Total $ 189952
The Umon VIews thIs tIme as a penod of lost OppOrtunIty for the Gnevors who were not asSigned
at the tIme of theIr mtenm remstatement to the emergency-dnver dutIes to whIch they had been
assIgned pnor to theIr suspensIOn and dIsrrnssal. The regular rotatmg shIfts of the pre-suspensIOn
asSIgnment afforded the opporturuty for shIft premIum, partIcularly the mght-shIft premIum of
6U The scheduled patIent transport, known as the "transfer vehIcle", operates from Mondav to
Fnday mostly dunng the daytIme, although sometImes dunng the evenmg No shIft premmm
attaches to the day ShIft.
It IS the Mimstry's posItIOn that the appropnate length of tIme for reImbursement IS from
suspensIon (December 15,1994) to mtenm remstatement (September 5, 1995), a penod of9
months. The MImstry's ratIOnale for ItS posItIOn IS that OppOrtunIty IS not lost after the date of
mtenm remstatement. In ItS calculatIOn of the ShIft premIum for the 9-month penod (January 1,
1995 to September 1,1995, the Mimstry was prepared to say that there were 14 hours m each 4-
week cvcle of the Gnevors schedule WhICh would have attracted ShIft premIum at the 52~ rate,
prOVIded the Gnevors had been workmg accordmg to the schedule In other words, they have
the potentIal for that; however, If they were on SIck leave, a statutory holIday, or vacatIOn, they
would not have been entitled to It. Mr Massender testlfied that the Gnevors were, mdeed,
assigned to the transfer vehIcle on mtenm remstatement, but he gave eVIdence that workmg on
the transfer vehIcle was part of their dutIes though "they were also assIgned to the emergency
car" on some weekends
At the tIme of the heanng, the Employer had already compensated the Gnevors as follows
14 hours x 9 months = 126 hours at the rate of 52~ per hour = $ 65.52
84 hours x 9 months = 756 hours at the rate of 62~ per hour = $ 468 72
Total =$ 534.24
14
ThIs was acknowledged by the Umon. The Umon agreed wIth the number of hours per month
. and the rate of the shIft premIum, and dIsagreed on the number of months and therefore on the
total number of hours m each category Its calculatIOn reads as follows
14 hours x 32 months = 448 hours at the rate of 52~ per hour = $ 232.96
84 hours x 32 months = 2688 hours at the rate of 62~ per hour = $ 1666.56
Total =$ 1899.52
Accordmg to Mr McEwan, the Issue IS whether or not the Gnevors were suffenng a loss dunng
theIr mtenm remstatement when they were asSIgned pnmanly to the transfer vehIcle whIch does
not operate on the mght shIft, that bemg the ShIft whIch attracts the 62~ per hour premIum. wIr
Montgomery elected to work strarght days as of November 1996
The order Issued by the Panel respectmg the mtenm remstatement of the Gnevors was the
followmg'
The Board has weIghed the above reasons m the context of the balance of
potential harm and has determined the potentIal harm to the Grievors outweIghs
the potential harm to the Employer and that thIS IS an appropnate case for
reinstatement. It believes that the recommendation of the Chair of the
Predisclphnary Hearmg that the Grievors be asSIgned to work WIth partners
other than each other would be m the interests of all concerned. Further the
Panel recognizes that certain changes w1l1 need to be made to scheduling m the
work place and that thIS may requITe some tIme. It is therefore ordermg that
the Gnevors be remstated and placed on the regular schedule as of September 1,
1995
There was no eVIdence, WIth the exceptIOn ofMr Montgomery's electIon m November 1996 to
work strarght days, that eIther Gnevor had preVIously requested relIef from evemng or mght
shIft, or that they m any way attempted to aVOId workmg these shIfts
In hIs eVIdence before the Panel at the tIme of the heanng on the mtenm remstatement, Mr
Massender was asked what hIS reactIOn would be If the Gnevance Settlement Board were to
order remstatement of the Gnevors. He replIed that OCRAS would be oblIged to honour the
order, but that, whIle he would contmue to pay them, he would consult WIth the Human
Resources sectIOn of the Mimstry of Health "to aVOId havmg them m the workplace" The Panel
15
was cogmzant of thIs at the trme It fashIoned Its order, and, took partIcular care III the wordmg of
Its order, to ensure that the Gnevors would not be placed m a sItuatIOn m whIch they receIved
pay but were gIven no dutIes, token assIgnments or non-ambulance officer dutIes At the same
tIme, the Panel also chose not to be more preCIse m Its order In other words, It dId not sav that
the Gnevors were to be returned to precIsely the same aSSIgnment, dutIes or locatIOn as before
theIr suspenSIOn and dIsrrnssal to allow some flexibIlIty for the Employer It dId, however, say
that they should be placed on the "regular schedule" whIch, for the Gnevors, was the emergency
vehIcle schedule. The mtenm order of the Board for remstatement dId not place any restnctIOns
on the Gnevors respectmg patlent contact or work actIvIty for the reason that It concluded that no
such restnctIOn was appropnate m theIr case
It IS the determmatIOn of the Board that Mr Rankm should receIve the shIft premIUm he would
have receIved accordmg to the number of hours per month preVIOusly agreed to by the partIes, at
the appropnate rates of 52t and 62t per hour begmillng December 9, 1994 and endIllg July 28,
1997 Further, thIs amount should be reduced If he would have been unavarlable for any
premIum shIft, by any ShIft premIums pard dunng the penod of mtenm remstatement, and by
the amount already pard by the Employer for the penod December 9, 1994 to September 5,
1995 Mr Montgomery should receIve the retroactIve ShIft premIum on the same terms as set
out for Mr Rankm, begmnmg December 9, 1994 and endmg at the date m November 1996 on
whIch he elected to work strarght days
5 OvertIme - (In dIspute)
ThIS Item also remams III dIspute, With respect to the number of months for whIch the Gnevors
should be compensated and the average number of overtIme hours per month. "Overtime" IS
addressed m the CollectIve Agreement m ArtIcle 13 The relevant sectIOns are the follOWIng
13 1 The overtIme rate for the purposes of this Agreement shall be one and one-half
(1 12) times the employee s basic hourly rate.
16
13.2.1 In the assIgnment of overtime, the Employer agrees to develop methods of
dlstributmg overtime at the local workplace that are farr and equitable after
having ensured that all Its operatlOnal requrrements are met.
~
13.2.2 In thIS Article, "overtIme" means an authorized penod of work calculated to the
nearest half-hour and performed on a scheduled working day m addition to the
regular working period, or performed on a scheduled day(s) off.
The Mlillstry has compensated the Gnevors under the headmg of "overtIme" from December
1994 to August, 1995, mclusIve, a penod of 9 months at the rate of 6 hours per month whIch It
had concluded at the tlffie of the heanng was mflated. The amount pard out to each Gnevor
under thIs headmg was $1,582 74 (6 x 9 x $1954 x 1 5) Nlr Massender dId not offer a ratIOnale
for arnVmg at the figure of 6 hours per month. TheIr revIsed subrrnssIOn on August 7, 1998 used
the average per month based on the mdlvIdual and Mr Chondon submItted that the appropnate
calculatIOn was for Mr Rankm (1 55 x 9 x $1954 xI 5) resultmg m a figure of$408 87, and for
Mr Montgomerv, (73 x 9 x $1954 xI 5) resultmg m a figure of$l92 57
The Uillon IS clarmmg lost overtIme OpportunIty from December 9, 1994 to Julv 28,1997 at an
average of 6 hours per month for each Gnevor ThIs amounts to $3517.20 for each. The Umon
has also objected to the Mimstry's proposed reductIOn of the amount already pard.
It IS the VIew of the Panel that prevIOUS overtIme of an mdIVIdual Gnevor IS not mdlcatlve of
lost OpportunIty durmg a later penod of tIme In ItS opmIOn, the best mdIcator of overtime m
thIS mstance would be the average of overtIme of ambulance officers at the Hunt Club base
dunng the penod m questIOn. OvertIme of ambulance officers IS, m most cases, actIVIty or
SItuatIOn generated wherem a partIcular call must be completed. ThIs IS dIstmgUIshable from
overtIme WhIch IS offered to an employee Therefore, the average of overtIme at the base should
mdIcate the level of overtIme actIvity whIch the Gnevors would have expenenced had they been
domg theIr regular ambulance drIvmg dutIes The penod of tIme should be from the date of
suspensIOn, December 9, 1994, untIl the date of the final declSlon, July 28, 1997 ThIs IS to be
reduced by any overtIme whIch the Gnevors earned dunng the same penod.
17
It IS the mtentIOn of the Panel to determme what compensatIOn IS due to the Gnevors, and thIS
" should not, m ItS opIillon, be mcreased or dImImshed due to a correctable error made bv eIther
partY Therefore, the Panel rejects the Umon's argument that the amount alreadv paId should not
be adjusted downwards
6 PenSIOn (Not III dispute)
The partIes do not dIspute the amounts deSIgnated as pensIOn and agree that the penSIOn
calculatIOn should not result m "cash m hand" for the Gnevors and should not be mc1uded m
any mterest calculatIon.
7 Health Benefits (Not III dIspute)
The partIes agree that the sum of $808 40 IS the correct amount under thIS headmg, that the
MImstry has pard thIs amount to the Gnevors and that the Gnevors have been compensated
appropnately for Health Benefits.
8 ParamedIc Salary Notes (In dIspute)
The Umon IS clarmmg the sum of$7,350 00 ($2100 x 3 5years) for each of the Gnevors under
thIS headmg for the penod from September 1995 (mtenm remstatement) to March 15,1999 (date
of potentIal paramedIc qualIficatIOn) The salary for paramedIcs IS covered m the CollectIve
Agreement m Schedule IV - INSTITUTIONAL CARE SERVICES CATEGORY
The relevant sectIons are set out below'
Paramedic allowance
An employee who occupies a posJtJon assigned to the Ambulance Officer 2 or 4
class who
a) IS authorized and reqUIred to perform advanced life support
skills delegated under the Health DIscIplines Act, and
18
b) has completed trainmg m advance life support skills whIch IS
not part of the Emergency MedIcal Care Assistants (EMCA)
. curriculum
shall be paid, in additlOn to each listed rate m the salary range
Bl An allowance of $300 per mum (SO 14Jhours) for provision of mtravenous and
pneumatic anti-shock garment skills
B2 An allowance of $900 per mum ($0 43Jhour) for provislOn of mtravenous and
drug skills,
B3 An allowance of $900 per mum ($0 43)) for provIsIOn of defibrillation skills,
B4 An allowance of $900 per mum (SO 43) for provislOn of advanced arrway
skills.
The Urn on clmms compensatIOn of $21 00 annuallv under B 1, B2, and B3 ($300+$900+$900) for
3 5 years. The Mimstry takes the positIOn that the Panel rendered Its deCISIOn on July 28, 1997
on thIs Issue and IS therefore Isfunctus officio
The Employer cIted Chandler et al. v Alberta Association of Architects et ai, S C C 62 D.L.R.
(4th) 577, (1989) m whIch the general rule respectmg the finalIty of the deCISIons of
admmlstratlve tribunals was addressed m both the declSlon of the late Justice Sopmka (ChIef
Justice DIckson and JustIce Wilson concumng) and the dIssent of Madame JustIce L'Heureux
Dube (Justice La Forest concurnng) The rule IS set out at page 581 m the dIssent of Madame
JustIce L , Heureu,x DuM
The doctrine ofjunctus officio states that an adjudIcator be It an arbItrator an
administrative tribunal, or a court, once It has reached its deCISIon carmot
afterwards alter ItS award except to correct clencal mIstakes or errors arismg
from an aCCIdental slip or omIssion.
Its applIcatIOn IS addressed at pages 582/3
In line WIth that doctrine, if the board had discretlOn to consider making
recommendatIOns, and chose not to, that should be the end of the matter The
fmality of the board's decislOn can be ascertamed from its own language when It
made Its orders.
There are, of course, exceptions to the general rule that an arbitrator who has
reached a fmal decision becomesjunctus officio and carmot afterwards alter hIS
award. For example an adjudicator may correct clencal mistakes or errors
19
arising from an accidental slip or omIssion. Re Lodger s International Ltd. And
OBrien (1983), 145 D.L.R. (3d) 293, 45 N.B.R. (2d) 342 (C.A.), Re Nelsons
Laundries Ltd., supra. However the board m the present case is not seekmg to
correct a sl1p or clerical error If it had the optlOn to consider making
recommendations, and yet chose not to, that choice does not detract from the
fmality of the decision.
JustIce Sopmka, m hIs decIsIOn at page 596 extends the applIcatIOn of the doctnne m the case of
admITllstratIve tribunals
Apart from the Enghsh practice whIch IS based on a reluctance to amend or
reopen formal judgments, there is a sound policy reason for recognizing the
fmality of proceedings before admmistrative tribunals. As a general rule, once
such a tribunal has reached a fmal deciSIOn in respect to the matter that IS before
it in accordance with its enablmg statute, that decision carmot be revisited
because the tribunal has changed ItS mmd, made an error within JunsdIction or
because there has been a change of circumstances. It can only do so If
authorized by statute or if there has been a sl1p or error wlthm the exceptlOns
enunciated in Paper Machinery Ltd. V Ross Engineering Corp supra.
To this extent, the princIple offunctus officio applies. It is based, however on
the policy ground whIch favours fmahty of proceedings rather than the rule
which was developed WIth respect to formal Judgments of a court whose
decision was subJect to full appeal. For this reason I am of the opmlOn that ItS
application must be more flexible and less formahstic m respect to the decisions
of administrative tribunals whIch are subject to appeal only on a point of law
Justice may require the reopening of adminIstrative proceedings in order to
provIde relief which would otherwIse be available on appeal.
The matter was dealt WIth by the Gnevance Settlement Board m an Intenm A ward m the matter
of OPSEU (Figliano) and The Nfinistry of Transportation and Communications, GSB 218/79,
(1979) (Pnchard) where the Panel consIdered the questIOn of whether" the reservatIOn of
JurIsdictIOn on one Issue retams the Board's JurIsdIctIOn on all matters m dIspute before the
Board or only With respect to the matter speCIfically reserved." In that case the Board had agreed
to remam seized of the matter WIth regard to the questIOn of compensatIOn. It concluded that
the better view IS that JurisdictIon IS retamed only WIth regard to those Issues on
whIch jurIsdIction IS reserved either expressly or impl1cltly and those issues on
which the board has not reached a fmal concluslOn. Whether or not JurisdIction
is retained becomes therefore a question of fact to be resolved by reference to
the board's declSlon and the conduct of the proceedmgs before it.
20
The Board m Figliano ruled that It had no JunsdlctIOn to consIder the Issue of a change to the
date of remstatement of the Gnevor to allow hIm to complete an educatIOnal programme, m spIte
of the fact that It consIdered the result unfortunate
In the case at hand, " the Board remam[ ed] seised to asSISt the partIes m the event that they
expenence[ d] dIfficulty WIth the ImplementatIOn of [its] decIsIOn" The Panel has determmed
that the request of the Urnon to broaden the scope of compensatIOn at the post-decIsIOn stage
from that set out m the Board's decIsIOn does not fall WIthIn the parameters of "the
ImplementatIOn" of the Board's decIsIOn, and the Board, followmg the reasornng III Figliano
supra has concluded that It IS functus o.fficio. WIth respect to compensatIOn under the ParamediC
Salary headmg.
In ItS deliberatIOns on the ments, the Board had concluded that It wanted to ensure the Gnevors
were not reqUIred to repeat any portIons of the programme WhICh they mIght have successfully
undertaken and to further ensure that they dId not expenence any further delay m theIT purSUlt of
the ParamedIC Program, now that they had been fully remstated. The Board order[ ed]
therefore, that they be permItted to resume theIr progress through that programme from the pOlllt
at whIch they were forced to abandoned It- -and that they were to contlllue III the programme,
provldlllg they met the qualIficatIOns as they progressed, at the earlIest possible tIme folloWlllg
theu relllstatement. ThIs approach, whIch knOWIngly did not lllclude compensatIOn based on
lost OpportunIty, was the unanImous conclUSIOn of the Board.
9 ParamedIC Trammg Costs (Not m dIspute)
The partIes have agreed that all costs of the Gnevors' paramedIC trarrnng are to be covered. The
Mimstrv already has a practIce of paymg the costs of paramedIC trarrnng and the Board orders
that It do so m the case of Mr Montgomery and Mr Rankm.
21
10 580/0 Retro Award (Not In dispute)
ThIs Issue IS not ill dIspute and has been dealt WIth to the satlsfactIOn of the Urnon.
11 VacatIOn OWIng (Not In dIspute)
It IS agreed between the partIes that the compensatIon owmg to Mr Rankm for vacatIOn IS
$2,462 04, and for Mr Montgomery $2,931 00 In the case of Mr Rankm, It was confirmed at
the heanng that the amount of $2,462 04 had been paId on May 28, 1998 mcluded m the sum of
$ 3063 14, under the headmg of ALL OTHER. SImIlar mformatIOn IS not confirmed for NIT
Montgomery The most likely headmg under whIch payment was made to hIm for vacatIOn
OWIng was on May 28, 1998 RT-GR SETA for the sum of$2618 36 ThIs, however dIffers
slIghtly from the amount the partIes have agreed on, whIch IS $2,931 00 It may be that the
adjustment, If one IS reqUIred, has already been made If not, and the adjustment IS reqUIred, It
should be so made
12 Interest (In dIspute ??)
The partIes agree that mterest should be paId as part of total compensatIOn. The sum of
$1,498 67 has already been pard to each Gnevor under thIs headmg The partIes agree that the
Hallowell House formula set out m Hallowell House Ltd. and S.E.I U, Loc 183 [1980] 1 Can.
L.R.B.R. 499, [1980] O.L.R.B Rep 35 (P C Plcher) should be used, but not necessanly on the
details Mr McEwan commented that thIs formula IS SImple, faIr and easy to apply and asked
the Board to SImply "recogillze the pnnclple" At the outset of the heanng, the Panel was gIVen
to understand that the partIes had agreed on mterest. ThIS agreement appeared to have unravelled
durmg the dIscussIOns If, by any chance, the partIes have retamed that ongmal agreement, they
WIll not need to avarl themselves of the ratIOnale and decIsIOn under thIs sectIOn. If, however,
that agreement no longer eXIsts, the partIes are to abIde by the followmg declSlon m the matter of
mterest. The Panel trusts that the follOWIng WIll assIst the partIes m calculatmg the mterest and
applymg the Hallowell House pnnclples.
22
'" The Board m Hallowell House remstated the Gnevor and ordered that "she be fully compensated
for all lost wages and benefits sustarned through the emplover's vIOlatIOn of the Act." In
paragraph 27, It was noted that
[EmphaSIS added]
An employee who has been deprived of employment contrary to The Labour Relations Act suffers
not only a loss of wages, but also a loss of opportunity to use the money and have interest
accrue on it. As thIS loss of interest is directly attributable to the employer's violatIOn of the Act,
it IS appropriate that m its effort to make an employee whole, the Board direct the payment of
interest on the wage loss.
Arbitrator Plcher then developed a formula whIch has been generally accepted as bemg
reasonable, farr and manageable The formula IS set out below'
[EmphaSIS added]
29 In determining how to calculate the interest on the compensation award, the Board must
take into account the fact that the total wage los[s] expenenced by the employee does not occur all
at once but rather accumulates WIth each pay period followmg the dIscharge. Another way to look
at the process IS to recognize that the employee s loss of accumulated interest IS greater with
respect to money that would have been earned immediately followmg the dIscharge than for
money that would have been earned at the determination of the complamt. If, for example, an
employee had been wrongfully discharged six months prior to the Board s determmation, the
employee would be entitled to SIX months wages subject to the duty to mJtJgate With respect to
the first month, the employee was deprived of the use of one sixth of his total wage loss and
the ability to earn interest on that money for five months For the second month, the
employee was depnved of another one SIXth of his wage loss for a total of one thrrd of his total
loss and further deprived of the ability to earn interest on that for four months and so on.
Perhaps the most SImple way to describe the situation would be to say that m the frrst month the
employee was depnved of one SIxth of his total loss, m the second month, one third of hIS total
loss, m the third month, one half of his total loss and so on. Because of the marmer m whIch the
loss accrues, It would be mappropriate to SImply apply the relevant armual interest rate to the total
amount of the loss.
33 For its ease of calculation, flexibility and basic accuracy therefore, the Board has
concluded that a calculation of interest on the Board s monetary awards should be earned out as
follows frrstly, taking into account all factors, including the duty to mitigate, assess the wage
portion of the compensation award, secondly divide it in half; lastly apply the appropnate
armual mterest rate pro-rated to reflect the proportion of the year represented by the compensatIOn
award.
Mr McEwan, m reply, dId suggest that a denvatlve of the Hallowell House formula set out by
ArbItrator Samuels m Ronald Knudson and The Crown in Right o/Ontario (LLBO), (1981) ,
j"
_.J
GSB 348/80 (Samuels), should be applIed. ThIs formula, proposed bv Counsel for the Urnon and
accepted bv ArbItrator Samuels followed the formula set out m Hallowell House, but went on
to deal WIth the penod follOWIng remstatement. The ArbItrator also commented that the amount
of mterest owmg at the end of the dIsmIssal penod should be added to compensatIOn figure
whIch serves as the basIS for the calculatIOn of the post-dlsmlssalmterest. ThIs dId not, however,
become part of the award, as he chose to accept, as presented, the Urnon Counsel's proposal.
Mr Chondon dIsagreed WIth the addItIOn referred to m Knudson statmg that It was hIs
understandmg that on the first day of the "agreement" the partIes had agreed on how to deal wIth
mterest.
The Board notes that the purpose of the Hallowell House formula IS to provIde a method of
calculatIOn for the wages lost dunng a penod of dIsmIssal or suspensIOn. It does not make sense
to apply It once the penod of dIsmIssal or suspensIOn IS over and the mterest IS no longer
accrumg on that basIs. ThIs was addressed m Re Pacific Western and Airline Employees'
Association (1982) 7 L.A.C (3d) 340 (Larson) at page 348
The Labour Relations Board did not deal with the method by which mterest ought to be calculated
although the Baigent board did deal exphcltly with that matter He relied upon the method
adopted bv the Ontario Labour Relations Board in Hallowell House Ltd. And Service Employees
Int 1 Union, Local 183 [1980], 1 Can. L.R.B.R. 499 (Plcher) This formula which has been
dubbed the "rough and ready method" of calculation interest was m fact borrowed from the
Enghsh Court of Appeal m Jejford et at. V Gee, [1970] 1 All E.R. 1202 At P 1208 of that case
Lord Dennmg M.R. outlined the problem
Loss of wages ThIS occurred week bv week. In principle, the Interest should be
calculated on each week s loss from that week to the date of trial. But that would mean
too much detail. Alternatively it would be possible to add up the loss every six months
and allow interest on the total every six months until trial.. More rough and ready the
total loss could be taken from accident to trial. and interest allowed only on half of It, or
for half the time, or at half the rate.
In the result, the Ontario board awards interest at the appropriate annual interest rate on
half of the compensation award to the date of the decision of the arbitration board and
thereafter on the full sum. The mterest rate It prescribes is the prime rate pubhshed by the Bank
of Canada for the month m which the complaint is filed.
[EmphaSIS added]
24
The Panel declmes to order that the mterest amount from the dIsmIssal compensatIOn penod be
factored mto the calculatIOn of mterest for the poSt-dISITllSSal penod. In arnvmg at Its decIsIOn
the Panel has noted that ArbItrator Samuels dId not make thIs part of hIs final award, and chose
to follow the requested formula. It also consIdered the fact that m the case at hand the mterest
factor was pnme + 1 whIle m most cases, the pnme rate IS ordered. ThIs, the Panel belIeves WIll
adequately offset the amount to be gamed from the mclusIOn of the mterest amount m the post-
dlsrrnssal calculatIon. However, It orders that mterest payable as of the date of remstatement be
"on the full sum"
The partIes were unable to agree precIsely on the deductIOns whIch should be made from the
total compensatIOn figure before applymg the mterest factor They do agree that mItIgatIOn
earmngs are to be deducted at the outset from the gross compensatIOn amount. Then, the partIes
dIffer on whether or not compensatIOn owed m the penod of dIscharge IS gross or net, and, If net,
what deductIOns are applIed to reduce It from the gross amount. It IS the pOSItIOn of the Mmlstry
that the
princIple applicable in awardmg mterest on damages owmg IS to award mterest on the net
damages which the Grievors would have been entitled to receive in therr hands and that to do
otherwise would make them more than whole.
Mr Chondon clanfied that when he spoke of "net" he meant "net of statutory deductIOns" He
referred the Panel to Re Normandy Private Hospital and British Columbia Nurses' Union
(1994),44 L.A.C (4th) 410 (Kmzle), at p 417
[EmphaSIS added]
When this net amount IS determmed [deductIOns ordered by the Board] then various statutory
deductions will have to be made such as income tax, unemployment insurance and Canada
Pension Plan premiums, and unemployment insurance benefit repayment. That will leave a
fmal amount to be paid to the grievor and to that amount we drrect that mterest be added m
accordance with the Court Order Interest Act.
He also referred us to
Re Peterborough County Board of Education and The Ontario Secondary School Teachers'
Federation, District 18 (1997), Unreported (DavIe) at p 3
25
Interest shall be paId only on the difference between the momes the gnevor would have received
had the employer allowed her claIm to use sIck leave credits (less statutorily requrred deductIOns),
and the momes she actually receIved from the employer and other sources, mcludmg Employment
Insurance benefits.
Mr McEwan submItted that the mterest should be calculated on the gross compensatIOn figure or
a figure close to that. He referred the Panel to the Employment Insurance Benefit repavments
and argued that EI benefits are "collateral benefits" and that the rule IS that the wrongdoer (the
Employer) does not get any mltlgatIOn or relIef or advantage from the fact that the mnocent party
was recelvmg or had to pay collateral benefits back at a later date
The Panel consIdered the submIsSIOns of the partIes and reasoned as follows In determIrnng
whIch Items should be deducted pnor to applvmg the mterest factor, the focus IS on the sItuatIOn
of the remstated Gnevor rather than the Employer's sItuatIOn. One must consIder the purpose of
the mterest. It IS to put the Gnevor as close to the same economIC posItIOn he or she would have
been m had the dIsmIssal not occurred - no better, no worse The focus IS not the effect on the
Employer and the Panel rejects Mr McEwan s argument that It should concern Itself wIth
ensunng that the Employer "does not get any mltlgatIOn, or relIef or advantage"
ArbItrator Plcher referred to "the loss of opportunIty to use the money and have mterest accrue
on It" for the penod of employment depnvatIOn. If one applIes that underlymg pnnclple to each
statutory deductIOn It should, the Panel belIeves, become clear whIch should be deducted and
whIch should not. If there IS no abIlItv to earn mterest under a gIVen headmg, then the amount
under that headmg should be deducted from the gross compensatIOn.
The Gnevors are subject to the followmg statutory deductIOns
Canada Pension Plan
Montgomery $492.63 Rankm $492 63 June 11, 1998 Issue
The Canada PensIOn Plan does not operate on an mdlvldual, accrued mterest baSIS. Therefore,
the fact that the Gnevors' contributIOns were not deducted and forwarded monthly dunng the
26
penod from dIsmIssal to mtenm remstatement but were, mstead forwarded m a lump sum m
- 1998, has not, the Panel belIeves, depnved them of any abilIty to earn lllterest on theIr penSIOn
contributIOns Therefore, theIr Canada PenSIOn Plan contributIOns should be deducted from the
gross compensatIOn before applymg the mterest factor
Public Service Pension Fund
Montgomery $107046 Rankm $107046 June 11, 1998 Issue
The Panel does not know If the PublIc ServIce PenSIOn Fund IS a statutory deductIOn, or how It
operates However, the partIes have agreed that the penSIOn payment does not result m cash m
hand for the Gnevors and that It should, therefore, not be mcluded m the mterest calculatIOn.
Employment Insurance Premiums
Montgomery $588 57 Rankm $588 57 June 11, 1998 Issue
The amount deducted would not have been avarlable to the Gnevors to earn mterest and therefore
It should be deducted from the gross compensatIOn figure before applymg the lllterest factor
Income Tax
Montgomery $3,83846 Rank-m $3,83846
Income tax would have been deducted and would not have been avmlable for earmng lllterest,
nor would there have been any mterest lost by farlIng to forward the deductIOns sooner, as
mcome tax for a salaned person tlmlllg IS submItted by the Employer at the tIme that lllcome IS
pard out to the employee Therefore the amount of lllcome ta.'X pard should be deducted from the
gross compensatIOn amount before applymg the mterest factor
Employment Insurance Repayment
Montgomery $3,44000 Rankm $9,26000
ThIs repayment IS for mOilles receIved dunng the penod between dIsmIssal and mtenm
remstatement, and as such, the partIes had It avarlable and therefore were not depnved of the
abIlIty to earn lllterest on the amounts above Therefore, these amounts should be deducted from
27
the gross compensatIOn figure before applymg mterest factor
The Panel trusts that the dITectIOns provIded under the "Interest" headmg WIll enable the partIes
to calculate the mterest WIthout further dIfficultIes or dIsagreements
13 Gross-up for Adverse Tax Consequences (In dIspute)
Counsel for the Urnon subrrntted that m order for the Gnevors to be properly compensated, or to
be made whole, they should receIve 10% "on top" to offset theIr bemg taxed on the retroactIve
amounts at a hIgher level than they would have been, had the funds been pard to them m 1995,
smce thev receIved the retroactIve amount m a lump sum on top of theIr 1998 earnmgs. The
percentage arnved at was based on the average annual earmngs of an ambulance officer whIch
are, accordmg to Mr Massender, between $40,000 and $44,000 dependmg on shIft premIums
and overtIme The total retroactIve payment for the Gnevors should be between $30,000 and
$32,000 whIch would result m the Gnevors havmg, for 1998, a gross mcome of$76,000 The
Urnon offered m eVIdence a chart shOWIng the "1997 Federal and Provmclal Income Tax for
IndIViduals" put out by Deloltte & Touche It showed that an mdlvldual WIth a taxable mcome
of$44,000 would, mOntano, pay $11,595 (26%) m federal and provmcral taxes and an
mdlvldual WIth a taxable mcome of$76,000 would pay $26,247 (35%) m taxes Mr McEwan
referred the Panel to the followmg case respectmg thIS Issue
Re The Crown in right of Ontario (Ministry of Citizenship) and Ontario PublLc Service
Employees' Union (Grinius), (1995),48 L.A.C (4th), 345 (Fisher)
ThIs case involves the determination of whether or not a reinstated grievor is entitled to addItional
compensation due to the extra tax paid as a result of receiving hIS remstatement compensatlOn m
one tax year as opposed to over several years.
The Board, WIth the Management Nommee dlssentmg, found that the Gnevor m thIS mstance
was entItled to such addItIOnal compensatIOn.
Mr Gnillus, the Gnevor, was dlsrrnssed m June 1990 and remstated m June 1993 WIth a 30-day
suspenSIOn. FollOWIng thIs, he was pard the gross amount of $117,311 whIch mcluded the sum
28
of $11 0,778 for back wages These were allocated as follows
1990 $20,947
1991 $20,523
1992 $49,258
1993 $20,040
4 Deductions for mcome tax purposes were taken from the pavrnent made m 1993 The
amount deducted was approxImately $50,000
The partIes agreed that the Employer was oblIgated to Issue a T4 m the year m whIch the
damages were pard and that thIS represented the total amount pard to Gnillus III that year (1993)
The Gnevor was askmg for two addItIOnal payments
(a) An award equal to the actual amount of extra tax he has paid because he
received four years of mcome in one vear, rather than over four years.
(b) In recognition that the award in (a) will also be taxable, an addltlonal amount to
be awarded to compensate for the tax pavable on (a) so that the net effect of the
payment would be that, after paving taxes on this supplemental amount he is left
with an amount equal to (a). ThIs payment can be referred to as the "gross-up"
ArbItrator FIsher noted that
the grievor was unable to utIlize the provisions of the Income Tax Act whIch allows a termmated
employee to put sums determmed to be a 'retrring allowance directly mto an R.R.S.P., thereby
makmg the payments not taxable m the year of receipt. ThIs was because the grievor's
employment was not terminated, rather he receIved this money as a result of hIS remstatement.
The Uillon argued that
It was certamly reasonably foreseeable at the time oftermmatlOn that the gnevor would file a
gnevance and that the fmal determmation of the Issue would not take place m 1990, that the
grievor would be remstated WIth back pay and that he would receive two or more years income in
one year
The Employer argued pnman1y that "thIs head of damages has not been awarded m the past and
that It IS too remote" and further that the Issue IS one of "tax unfarrness" III that the Income Ta.'C
Act does not provIde for backward averagmg m these SItuatIons The problem, It mamtarned,
"should be remedIed by changmg the Income Tax Act, not burdemng employers wIth the cost of
thIS statutory unfarrness."
ArbItrator FIsher found that the Gnevor had suffered "a demonstrable and sIgillficant loss due to
29
the extra tax burden as a result of recelvmg four years mcome III one vear" He addressed the
Issue of reasonable foreseeabIlIty and reasoned as follows
The Issue of reasonable foreseeability (or remoteness of damage as It IS sometrrnes called) relates
not to the quantum of damages but to the head or type of damages. Therefore, If It IS reasonably
foreseeable at the time of the improper discharge that the grievor If remstated with back pay at a
later tIme m another tax year would suffer damages due to the mcreased tax burden, then It
matters not whether the actual delay is four years mstead of two, or the actual tax burden IS
$20000 as opposed to $2,000
He found that "thIs type of damages IS reasonably foreseeable" He then commented that the
"mere fact that thIs type of damage award has never been awarded IS of lIttle sIgrnficance" and
gave reasons for thIs VIew, notmg that It was qUIte proper for the Panel to deal WIth the Issue on
first pnnclples"
He found the Gnevor
entltled to be compensated for the additional tax burden resultmg from recelvmg hIS lump sum
damage award as compared to what he would have paid had he been receiving his regular wages
in the subject period. As any such payment Itself will be taxable mcome, this amount IS to be
grossed up so that the net amount IS suffiCient to compensate him for the aforementlOned tax
differential,
Arbitrator FIsher set out hIs reasonmg as follows
The fact that these damages may be dIfficult to ascertam is no reason we should not try and do our
best to calculate the loss. There is an obligatlOn upon the Ulllon to present proper factual eVIdence
and perhaps even expert evidence to prove the loss, but If they accept such an obligation to do so,
thIS board should make the appropriate award. Perhaps as time goes on and thIS head of damage
becomes a more common place award, the parties will develop short cuts and formulas to
determme the loss.
We dIsagree with the employer that thIS is strictly a problem between the gnevor and Revenue
Canada. The employment relationshIp between these parties eXIsts m the legal framework of the
laws of Canada, mcludmg the Income Tax Act It IS wlthm that eXlstmg framework that the
contractual damages are calculated. If the present tax laws are such so that receivmg a large lump
sum is less favourable than periodIc payments, then it IS proper that the employer pays the costs
caused by this situatlOn, as they caused the dismissal in the fIrst case. If, on the other hand, the tax
law was such that It was more favourable for an employee to receIve a large lump sum rather than
periodic payments, it would be open to an employer to argue that It should not have to pay the
employee the entire amount of his back wages, but only that amount which would put the
employee m the same net tax posItion as if he had received hIS regular wages during the same
period.
The guiding pnnciple WIth respect to compensation awards is that a reinstated employee IS to be
put in the same economic positlOn he or she would have been had the dismissal not occurred. This
30
means that the employee should not be any worse off, nor anv better off, than if the dismissal had
not occtUTed m the frrst place.
Accordmg to Mr McEwan, m order to make these Gnevors whole, a gross-up IS necessarY
Counsel for the Employer subrrntted that most arbItrators have found such a gross-up claim to be
too remote and too dIfficult to determme. ThIs has been due, m part, to the number of llldlvldual
CIrcumstances whIch go llltO determmmg a person's effectIve tax SItuatIOn. He pomted out that
the Gnevors could, If they receIved the retroactlve payment m one year, place It m a RegIstered
RetIrement Savmgs Plan. ThIs would, he mamtarned, negate the tax and any argument for such
a clarm.
Mr Chondon referred the Panel to several cases respectmg remoteness of damages These were
applIed Iilltrally to the Issue of the paramedIcal trarrung compensatIOn but also have relevance to
the gross-up Issue. He CIted an unreported case
The City of St. John's and the Canadian Union of Public Employees, Local 569, (1997)
Umeported (Montgomery)
m whIch the ArbItrator consIdered "QUANTUJvf OF DAMAGES IN a DISPUTE JJ , and III dOlllg
so, addressed the Issue of remoteness at page 8
How IS it possible, for example, for thIS ArbItrator to assess whIch employees would have even
been successful in attainmg one of the new positIOns and whether one of them would have
accepted one of the HSO positions If it have [sic] been offered?
The Union has asked that the three mdlviduals, be placed in the three posJt1ons subject to the
posting provisIOn of the Collective Agreement. While I am aware that the general rule with
respect to damages IS that the party whIch suffered loss because of a breach of the collective
agreement IS to be placed, as nearly as possible, m a posltlOn he/she would have been m had the
wrong not occtUTed, It is not even possible to determine If the three above mdividuals would have
even been the successful candIdates in the old internal competition, nor whether they would have
accepted the positions if It had been offered to them. Because of the impossibility of determming
how these employees mIght have converted their potential OppOrtunity for advancement mto
reality, the Union s request that they be compensated for what mIght have been must fail.
The Employer also submItted a "Second Supplementary Gnevance ArbItratIOn Award", thIs one
from Alberta. -
31
Re The Corporation of the City of Calgary and Emergency Paramedic Association of Calgary
(1993), Unreported (AV.M. BeattIe)
The Employer submItted thIs as an IllustratIon of mterest not bemg payable on momes deducted
from the Gnevor's gross wages and forwarded to Revenue Canada. The Board declared
unanImously that "mterest IS not payable on the mcome tax amount remItted to Revenue
Canada." At the same tIme, the deCIsIOn referred to the Issue of gross-up
In Issue 7 (pp.25,26) of the Supplementary Award, we held that because the income receIved by
the grievor as damages will be taxed m one year (the year of receipt), rather than spread over the
two years during whIch he would have been employed (if not dismissed), and because he will be
requrred to pay more in income taxes, he should recover the amount of the addJtJonal tax from the
City It IS that amount of mcome tax which has been paid to Revenue Canada by the CIty on
behalf of the grlevor The grievor would not have receIved the amount of income tax deductions
made m the normal course If he had not been dIscharged and continued to be paid on a regular
basis; srrnilarly he does not receive the amount of the income tax deduction now remItted by the
CIty to Revenue Canada. We agree with the City's submissIOn that the grievor would be "made
more than whole" ifhe were awarded mterest on monies which he is not entItled to receIve. He
has already been given the benefit ofhavmg mcome taxes calculated on the "gross-up" amount of
income He will not be liable for payment of mterest of Revenue Canada. Accordmgly we reject
the grievor's clarrn and declare that interest IS not payable on the income tax amount remitted to
Revenue Canada.
Mr Chondon also referred the Panel to two cases of ArbItrator JollIffe III whIch the Issue of
gross-up IS touched on.
Re Canada Post Corp. And Canadian Union of Postal Workers (Beale) (1989) 6 L.AC (4th),
232 (JollIffe) , and
Re Canada Post Corp. And C.U.P W (Winlaw) (1993), 36 L.AC (4th), 216
The gross-up Issue was addressed m Beale at pp 237 and 241
Fourthly, I should consIder also that the grievor m recelvmg a lump sum compensatlOn payment
m the present tax year WIll suffer a hIgher margmal tax rate whIch will affect the net amount she
actually receives and should give rise to addItional compensation to offset the mcreased taxes
payable.
Likewise, the fact that the gnevor will receive her monetary compensation package lump sum,
putting her in a higher marginal tax bracket IS, III my view, too remote a heading of damages. I
know of no cases where an employer has been directed to pay additional compensation because of
the tax ramIfications of a lump sum payout and am not prepared to fmd that headmg a foreseeable
consequence of the discharge.
32
ArbItrator JollIffe consIdered the same Issue four vears later III Winlaw at pp 218 and 235/6
The second issue pertains to the unIon s concern that the compensation pavrnent to the gnevor
occurred over two months m June and July, 1991, resulting from the reinstatement order gIven on
December 6, 1990, and followmg the partIes negOtlatIOns on the appropriate figure. As a result
of the timmg of the payment, she received the entire amount m 1991 bemg the year in whIch she
was returned to her employment, the grievor has encountered certam adverse tax consequences.
In this regard the union argues agamst a rulmg which I previously made in another case Beale,
supra, where at p 241 I stated that the fact the reinstated employee received her monetary
compensation package lump sum, thereby putting her in a higher margmal tax bracket, was m my
VIew too remote a heading of damages. I stated m my ruling that I knew of no cases where an
employer had been directed to pay additIOnal compensation because of the tax ramIficatIOns of a
lump sum payment and I was not prepared to fmd it a foreseeable consequence of the dIscharge so
as to qualify as a compensable heading of damages. EssentIally the union asserts that m light of
Its additlonal argument on the issue which It IS now prepared to make, I should change my view
The corporation on the other hand accepts as reasonable the ruling I made some years prevIOuslv
in Beale. I must say that whereas in Beale this issue was presented in a somewhat cursory fashIOn
the parties have now had the opportunity to fullv present their argument complete WIth an
abundance of case-law, some of it quite recent. The corporation asserts also that in any event I am
without jurisdiction to consider thIS second issue inasmuch as the compensation figure has been
settled.
Certamly, in my vIew an mformed consideratIOn of whether there should be a payment of mterest
is not fundamental to a settlement agreement on compensation. As Mr Chutter pomted out m his
testimony it is paId in some mstances and not paId m other instances. LikeWIse consideration and
mclusion of the tax ramIfication issue can hardly be considered fundamental.
Arbitrator JollIffe determmed that the partIes had "bound themselves to a contractual settlement
of [the] matter" and that he was
WIthOut Jurisdiction to hear further representatIOns respecting the Issue of interest or tax.
ramlficatlOns on the compensatIOn payment, which issues were not addressed m the parties
negotiations prior to settlement.
The Urnon has requested an 8% to 10% gross-up based on the data submItted and CIted above
The data conSIsted of
. the average earnmgs of an ambulance dnver - $40,000 to $44,000, a spread of
$4,000, based on Mr Massender's eVIdence,
. the estlffiate of the settlement amount at $32,000
. the estImated amount of mcome subject to 1998 taxatIOn by Revenue Canada of
$76,000
. the dIfference between the mcome tax payable on mcomes of $44,000 and
$76,000 whIch was $11,595 and $26,247, respectIvely accordmg to the DelOltte &
""
.J.J
Touche QUlck Ta.x Facts 1997-1998
. the percentage tax rates for $44,000 and $76000 of26% and 34% respectIve Iv as
calculated by Mr McEwan
and
. the tax rate percentage dIfferentIal of 8% as calculated by Nlr McEwan.
At the tIme that the submISSIons were made on thIs Issue the partIes would not have been m a
posItIOn to calculate theIr mcomes for 1998 and so specIfic detarls of theIr llldlvldual ta.x
SItuatIOns were not avarlable
The Panel's reVIew of the scant Junsprudence m thIs matter gIves the folloWlllg pIcture
. In 1982 m
Re Pacific Western Airlines Ltd. And Canadian Airline
Employees Assn. (1982), 7 L.A.C (3d) 340 (Larson),
a gnevor who had been remstated made a clarm for addItIOnal
compensatIOn for the addltIOnallllcome tax lIabilIty due to receipt
of remstatement mornes as lump sum payment. ArbItrator Larson
dIsposed of the matter thus
We also reject the claIm for losses to the gnevor in respect of
hIgher taxes on the grounds that liabllity was not proven. It
may well happen that the gnevor will be reqUlred to pay
higher taxes but that is subject to proof. We therefore think it
appropriate to deal WIth thIS claIm strIctly on the basis of an
onus whIch has not been discharged.
The ArbItrator did not, however, reject the concept of addItIonal compensatIOn for addItIOnal tax
lIabIlIty, nor dId he find that It was unforeseeable or too remote as a head of damages.
To summanze,
. In 1989 ArbItrator JollIffe m Beale found the fact that the Gnevor would be put
mto a hIgher tax bracket by recelvlllg her compensatIOn m a lump sum was "too
remote a headmg of damages" and he was "not prepared to fmd that headlllg a
foreseeable consequence of the dIscharge" He also stated that he knew of no
cases where an employer had been dIrected to pay addItIOnal compensatIon
because of tax ramIficatIOns.
34
. In 1990, the Board m City of Calgary and Emergency Paramedic Association.
supra, noted m Its supplementary award that It had prevlouslv determmed that the
gnevor,
because the mcome receIved by the grievor as damages will
be taxed ill one year (the year of receipt), rather than spread
over the two years dunng which he would have been
employed (if not dismIssed) and because he will be requrred to
pay more in income taxes, [he] should recover the amount of
the additional tax from the City
The Board rejected the Gnevor's clarm for mterest on the addItIOnal
compensatIOn.
. In 1993, ArbItrator JollIffe, dealmg agam WIth Canada Post and C U.P W,
commented that the mclusIOn of the ta"X ramIficatIOn Issue, whIle It can 'hardly
be consIdered fundamental" IS, "at present m compensatIOn matters [it] an
emergmg Issue perhaps, but only arguable at best as a legltlffiate headmg of
compensatory damages"
. In 1995, ArbItrator FIsher, m the case also before the Gnevance Settlement Board,
Grin ius, supra, was faced wIth a SItuatIOn m whIch the Gnevor spent four years
from dIsmIssal to remstatement WIth suspensIOn substItuted WIth the result that
the Gnevor suffered "a demonstrable and sIgmficant loss due to the extra tax
burden of receIvmg four years' mcome III one year" He found that the head of
damages was reasonably foreseeable, that It was proper for hIm to deal WIth It on
the baSIS of first pnnclples, and that the dIfficulty of ascertarrnng the damages
should not prevent the Board from calculatmg the loss In that respect, he noted
that there IS an obl1gatIOn On the Umon "to present proper factual eVIdence, and
perhaps even expert eVIdence to prove the loss, and If they fulfill thIs oblIgatIOn,
the Board should make the award. In that case the Urnon met ItS obl1gatIOn and
the Board found the Gnevor "entItled to be compensated for the addItIOnal ta'X
burden resultmg from reCeIVmg hIS lump sum damage award" as well as a
grossmg-up of the addItIOnal compensatIOn so that the net amount suffiCIent to
compensate hIm for the tax deferentIal"
In the 1989 Supplementary Award, Beale, supra, ArbItrator JollIffe referred to the "lump sum
payment when receIved" and that the Gnevor "WIll receIve her monetary compensatIOn package
lump sum" In other words, she had not received It at the tIme of the heanng and therefore she
could not have been aware of the amount of the actual deductIOn to be made, nor was she aware
of the Impact on her tax rate, other than she expected that she would pay more m ta"Xes He
found the head of damages too remote. In the 1993 Supplementary Award, City of Calgary the
35
award precedmg the one cIted here, the amount had been awarded and It had been left to the
partIes to perform "the calculatIOn and payment of the gross-up amount, If any, the mcome ta.,<:
paId and the calculatlon and payment of mterest on the amounts awarded " In the 1993
Supplementary Award of ArbItrator JollIffe, the Gnevor had receIved her pavment m 1991 and
had "encountered certam adverse tax consequences" In other words, the Gnevor had receIved
the settlement funds, the Employer had deducted the tax and the Gnevor had filed her mcome tax
return and could demonstrate the lffipact on her tax SItuatIOn. However, the Issue was not
conSIdered as Arbitrator JollIffe determmed that he dId not have junsdlctIOn. In the 1995
Supplementary A ward of Arbitrator FIsher, the Board had ordered a speCIfic amount pard, the
Employer had pard the amount m 1993 and had remItted the mcome tax to Revenue Canada at
that tlffie. In 1994, the Gnevor filed hIs mcorne tax and sought to mlillIllize the Impact of the
lump sum payment WIthout success. When the matter came before the Board, the documentary
eVIdence was avar1able to demonstrate the tax Impact.
Mr Chondon, for the Employer, has argued that gross-up clarms have not found much arbitral
support because they are too remote, and dIfficult to determme The Panel IS of the VIew that the
junsprudence supportmg gross-up IS so lImIted because the detarls of compensatlon are most
often handled by the partIes, eIther durmg:settlement or followmg an arbItral award. The concept
IS famIlIar to those negotlatmg compensatIOn m relatIOn to dIsmIssal. The awards cIted above
are all supplementary awards WhIle the Panel recogillzes that gross-up for adverse tax
consequences IS not part of every settlement or compensatIon calculatIOn, It does not belIeve that
one can conclude from the small number of cases, that gross-up for addItIOnal tax IS VIewed
unfavourably by arbItrators or that It IS unusual m compensatIOn arrangements. Further,
Arbitrator JollIffe was the one Arbitrator above to reject the concept out of hand (1989) and even
he, later (1993) recogillzed that gross-up for addItIOnal tax was an "emergmg Issue" ArbItrator
Larson found the Uillon had not met the onus of proof, ArbItrator BeattIe had awarded It
preVIOusly, and ArbItrator FIsher, sIttmg as a Vice-charr of the Gnevance Settlement Board
found the concept reasonable and supportable prOVIded the Urnon met Its oblIgatIOn to prOVIde
the proof.
36
Mr Chondon also subrrntted that the Grinius case was exceptIOnal and JustIfied because of the
four-vears' ofmcome m the lump sum and the substantIal adverse tax consequences. The Panel
agrees that the SItuatIOn was exceptIOnal because of the degree of the adverse tax consequences
upon the Gnevor However, ArbItrator FIsher was clear m statmg that he was of the VIew that
"m almost anv remstatement case there WIll be a movement of taxable mcome from one year to
another" and "that It matters not whether the actual delay IS four years mstead of two, or the
actual tax burden IS $20,000 as opposed to $2,000" In other words, he contemplates that gross-
up for adverse tax consequences may be reqUIred to put a remstated employee m the same
economIC posItIOn he or she would have been [in] had the dIsmIssal not occurred", that IS, "m
the same net tax posItIOn as If he had receIved hIs regular wages dunng the same penod"
ThIs Panel concurs WIth the reasonmg of ArbItrator FIsher, notmg that arbItral awards m the
context of the Gnevance Settlement Board have a precedentlal value unless a subsequent Panel
finds the reasonmg or outcome wrong or mappropnate to apply to the case It IS rulmg on.
However, the Panel finds that the eVIdence submItted by the Urnon IS lackmg III speCIfiCIty and
It IS not prepared to Issue an award respectmg addItIOnal compensatIOn based on estlffiated
percentages. It recogrnzes that It was not pOSSIble for the Urn on to submIt III eVIdence the
detarls of the tax Impact gIVen the tlmmg of both the payment to the Gnevors and the heanng
The questIOn then becomes, should the Panel close the door on thIS Issue because the heanng on
compensatIOn ImplementatIOn was held before the facts of the Issue had crystallIzed and/or
because the payment was not made untIl 10 months after the declSlon was Issued. The Panel has
concluded that It should not shut the door and dIrects the partIes, once the figures are avarlable,
to calculate the gross-up follOWIng the Grinzus award, and to mclude It m the final
compensatIOn figure.
14 T4-1995 (No longer in dIspute)
The Urnon had requested that an amended T4 slIp be prOVIded by the Employer to deal wIth the
Illcome tax Impact caused by the retroactIve payment m 1998 Counsel made Illqumes dunng
37
the heanng and determmed that the Employer was not permItted to adjust submItted T 4 slIps
Both partIes accepted thIs mformatIOn as valId.
15 Proof of Payment for Employment Insurance and PensIOn Fund
(Not III dIspute)
The Gnevors have requested documentary proof of the Employer's havmg pard Its contributIOn
to the Employment Insurance and the PensIOn Fund. The Employer has agreed to provIde thIs to
the Urnon.
In conclusIOn, It IS the hope of the Panel that the deCISIOns taken above will provIde the partIes
WIth the gUIdelInes they need to complete the calculatIOns WIthout further mterventIOn of the
Panel. However, the Panel wIll remam seIsed of the ImplementatIOn matter and IS prepared m
partIcular to receIve wntten submIsSIOns on the calculatIon of gross-up, should the partIes not be
able to complete thIs calculatIOn based on figures whIch should be aVaIlable m the next three
months
Dated at Kmgston, tins j ~day of ~ ~ ' ~999
H~
at d/
~D W Clark, Member (partIal dissent to follow)
, ~~e:./
J - C LanIel, Member
montrank.aw3
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