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HomeMy WebLinkAbout1995-2109.Tilden.00-02-07 Decision i\~AFLI EUEL 'E LA .'E rill'f EUE L "TE.c E L i\~AFLI GRIEVANCE COMMISSION DE -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 GSB # 2109/95 2110/95 2111/95 2112/95 OPSEU # 96D046 96D047 96D048 96D049 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SElTLEMENT BOARD BElWEEN Ontano Pubhc ServIce Employees Umon (Tilden) Grievor - and - The Crown m Right of Ontano (Mimsm of MumcIpal Affairs and Housmg) Emplover BEFORE Nimal DISSanayake Vice Charr FOR THE Ahcl Ryder GRIEVOR Counsel Ryder Wnght, Blair & Doyle Barnsters & SohcItors FOR THE LIane Brossard EMPLOYER Counsel, Legal ServIces Branch Management Board Secretariat HEARING Januan 28 2000 Supplementary Decision The Board issued its decision in this matter on October 19, 1998, wherein it concluded that the Employer had, inter alia, contravened the collective agreement by failing to asslgn the grlevor to an available position for which he had qualifications The Board directed that the employer appoint the grlevor to the position retroactively to the time when he should have been assigned and to compensate him for all losses The board reconvened on January 28, 2000 to deal with a dispute between the parties as to the appropriate amount of interest payable to the grievor on the amounts owing pursuant to the award Factual Backqround The facts are not In dispute Following the Board-s decision dated October 19, 1998, Ms Marcia Grimes, Senior Human Resources Advisor, sent to the grlevor a cheque In the amount of $ 20, 000 00 with a letter dated November 4, 1998, describing the cheque as an -interim payment- on the Grievance Settlement Board award It appears that this cheque was promptly cashed by the grlevor 3 On November 9, 1998, the employer wrote to the grlevor advising that effective November 16, 1998 he was assigned to the position In compliance with the Board order On December 21, 1998 Mr Alick Ryder, union counsel, wrote to Ms Liane Brossard, employer counsel, . .. about the lnqulrlng calculation of the compensation oWlng to the grlevor He further wrote .Would you also please have your client provide us with a further down payment on the ultimate award I am suggesting 80 of your cl ien t.s calculation · On December 24, 1998, Ms Grimes enclosed a cheque In the amount of $ 106,716 69 with the following letter to Mr Ryder Please find a cheque for Mr Ken Tilden in the amount of $ 106,716,69 which represents full and final payment on the Award In relation to GSB numbers 2109/95, 2111/95, and 2112/95 As you know an interim cheque in the amount of $20,000 was forwarded to your office on November 4, 1998 on his behalf I have attached a breakdown of the applicable deductions as prepared by our payroll office This breakdown includes full reinstatement back to November 1995 up to November 1998 when Mr Tilden started employment with Ontario Realty Corporation 4 Please acknowledge receipt of this cheque and forward it to Mr Tilden By letter dated January 4, 1999, Mr Ryder wrote to Ms Brossard, .We do not accept the above cheque as representing compliance with the Board.s award. Counsel reviewed In the letter a number of areas of compensation still to be determined such as interest and lncome tax top-up He closed his letter by writing In Vlew of the terms of your cl ien t.s letter Mr Tilden has not cashed the cheque Would you please confirm that you have no objection to his cashing the cheque without compromlslng his right to assert the balance of his award It lS agreed that on January 12, 1999, Ms Brossard called Mr Ryder-s office and left a vOlce-message assurlng that the grievor may cash the cheque for $106,716 69, without prejudicing his right to claim any additional amounts of compensation In a letter dated January 13, 1999, Mr Ryder acknowledged the receipt of the message by writing, 5 Thank you for your vOlce message of yesterday advising that it was in order for Mr Tilden to cash your client.s recent cheque without waiving his rights to claim additional monles In order to recover his full entitlement under the Board.s Award Despite the receipt of the assurance he sought, unlon counsel returned the cheque In question to the employer with a letter dated March 11, 1999 which stated, .Un t i 1 the outstanding lssues relating to the calculation of the compensation In this matter have been determined by the Board, Mr Tilden lS not prepared to accept the cheque In the amount of $106,716 69 We are therefore returning the cheque to you for delivery to your client. On March 23, 1999, Ms Brossard wrote agaln to Mr Ryder, stating, inter alia I acknowledge receipt of your letter dated March 11, 1999 and the uncashed cheque In the amount of $106,716 69 from the Ministry to Mr Tilden As I indicated to you back In December 1998, the Ministry would not take the position that by cashing the cheque, Mr Tilden would forfeit his right to argue that the amount was not correct or did not represent the amount oWlng to him under the award of Mr Dissanayake Accordingly we will not be prepared to pay any additional interest or penalty of any sort as a result of Mr Tilden not cashing his cheque If he refuses to cash the cheque he does so at his own peril 6 On June 17, 1999, the employer sent to the unlon counsel another cheque In the amount of $103,42 12, which was cashed by the grlevor ISSUE The employer accepts that it lS liable to pay the grlevor interest to January 12, 1999, the day the unlon received the assurance it sought that the grievor may cash the cheque without walvlng his right to claim additional amounts of compensation The employer, however, denies liability to pay any interest beyond that date The union, on the other hand, claims interest up to June 17, 1999, the date the second cheque was received and cashed Submissions Union counsel does not take lssue with the fact that on January 12, 1999 the grlevor received the assurance that by cashing the cheque, he will not be prejudiced with regard to any additional claims he may have Indeed, Mr Ryder conceded that by not cashing the cheque at that time, the grlevor made -a financial error- However, In his Vlew, that error ought not deprive the grlevor of his right to a -full remedy- , l e to be made whole for his losses In his Vlew, to deny interest would 7 be tantamount to penalizing the grlevor for his error He cited case law to the effect that interest awarded by arbitrators on monles oWlng, lS compensatory In nature and submitted that interest ought not be used to penalize the grlevor or the employer Counsel stressed that until the cheque was actually cashed by the grlevor on June 17, 1999, the employer had the full enjoyment of the amount In question Counsel submits that if the employer-s position lS upheld, it results In a windfall to the employer because for the period in question it gets to enJoy the money that really belonged to the grlevor, at no cost Counsel submits that as long as the employer had the benefit of that money, it must be held responsible to pay interest to the grlevor The employer agreed that an interest award is compensatory in nature Interest lS awarded where a person has been deprived of money that he was properly entitled to Counsel submits that from January 12, 1999, the grlevor cannot claim that he was deprived of the amount of the cheque He had the cheque, as well as an assurance that he can cash it without any risk of prejudicing any other claims he may have Subsequently, he was 8 specifically warned that if he continued to refuse to cash the cheque, the employer would not be responsible for interest Therefore, if the grievor did not have the benefit of the money between January 12, 1999 and June 17, 1999, it was not due to any fault of the employer but a consequence of his own choosing In her Vlew, the employer should not be held responsible for interest, when it provided the grievor with a cheque, urged him repeatedly to cash it, and gave a clear assurance that by cashing the cheque the grlevor was not waiving any right to any additional claims Conclusion When the Board orders interest to be paid on back wages as it did here, the rationalization lS that the grlevor had wrongfully been denied the use of that money as a result of the employeres conduct in contravention of the collective agreement Interest lS awarded as compensation for the loss of the use of that money which was the result of the employer-s wrongful conduct The lssue lS whether that reasonlng applies with regard to the period between January 12 and June 17, 1999 Turning to the facts, within a few days of the Board order, the employer made an interim payment of $ 20,000 00 On 9 December 21, 1998, the union sought an additional -down-payment- Within days, the employer sent a further cheque In the amount of $ 106,716 69, but stated that it represented -full and final payment on the award- Quite understandably, this was a cause for concern for the grlevor He did not cash the cheque, and quite rightly pointed out that the amount of the cheque did not represent -full and final payment- Most importantly through his counsel-s letter of January 4, 1999, he specifically sought an assurance that the employer would -have no objection to his cashing the cheque without compromising his right to assert the balance of his award - It lS undisputed that on January 12, 1999, the grlevor received the very assurance he sought Then however, for some unexplained reason, the grlevor decided that the cheque would not be cashed The employer at this point not only reiterated its earlier assurance that -the Ministry would not take the position that by cashing the cheque, Mr Tilden would forfeit his right to argue that the amount was not correct or did not represent the amount oWlng to him under the award of Mr Dissanayake,- but specifically put the grlevor and the unlon on notice that -we would not be prepared to pay any additional 10 interest or penalty of any sort as a result of Mr Tilden not cashing his cheque - While not claiming that there was any justifiable reason for the grlevor to not cash the cheque at that time, unlon counsel submitted that despite that -error- on the part of the grlevor, the only fact that matters lS that the employer had the money until it was actually cashed In his Vlew, as long as the employer had the benefit of the money that was really the gr ievor-s, the employer was liable for interest With respect, I disagree with the union~ position Before the employer becomes liable to pay interest by way of compensation, it must not only be established that the employer had the benefit of money that properly belonged to the grlevor, but also that the employer having that money - and the grlevor being deprived of it - was the result of the employer-s wrongful conduct The loss of the use of the money must be a consequence of the employer-s wrongful conduct Thus Waddams, The Law of Damaqes (1983) at 469 (cited in Re Queen In Riqht of Ontario & OPSEU (1986) 57 OR (2d) 641 at p 648) In discussing the basis for awarding interest as damages writes, -One who fails to pay 11 promptly money justly due to another does the other a wrong This wrong, consists of delay In payment of what lS owed . To illustrate the fallacy of the union.s position, I take a simple example where an employee fails or refuses to cash his pay cheque for 6 months Clearly In this circumstance, the money remalns with the employer for that period Surely, the employee cannot claim interest by way of compensation for that period on the basis that the employer had the use of the money There, as here, the employee was not deprived of the use of the money by the employer Rather, the employee for some reason of his own, had decided not to use the money which was made available by the employer If the grlevor was denied the use of the money for the period in question, it was a result of his own decision When the employer lssues a valid cheque, representing monles it owe s , whether it lS a pay cheque or a cheque representing back wages, the grlevor lS no longer In a position to claim that the employer lS depriving him of money owed to him He has the ability to use the money If he chooses not to do so without justification, he does so at his own peril In the present case the employer delayed the payment of money justly owed to the grlevor However, that delay lasted only until January 12, 1999 Beyond that date it cannot be said that there was any delay in payment on the part of the employer It 12 lS not suggested that after he received the assurance from the employer, the grievor had any further concern that justified his not cashing the cheque Indeed no reason was offered for that decision Where the employer has not wrongfully deprived the grievor of monies owed, it lS not responsible for any losses the grlevor may have suffered as a resul t of his own decision, without any justification, not to use the money that was at his disposal Therefore, I find that the employeres liability for interest ceased as of January 12, 1999 I remaln seized with any other outstanding lssues with regard to remedy Dated this 7th Day of February of 2000 at Hamilton, Ontario ~~ ..:-.,_ 'lor - ,~', '=" ~-=! -- --;~ .. ~- Nimal V Dissanayake Vice-Chair