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HomeMy WebLinkAbout2000-1724.Culen.02-12-17 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1724/00 UNION# 01A329 01A330 01A331 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Cui en) Grievor - and - The Crown In RIght of Ontano (Mimstry of CorrectIOnal ServIces) Employer BEFORE Manlyn A. Nairn Vice-Chair FOR THE UNION Enc O'Bnen Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Andrea KupreJanov Staff RelatIOns Officer Mimstry of PublIc Safety and Secunty HEARING November 29 2002 2 DECISION The partIes agreed to deal wIth thIS gnevance through an expedIted med/arb process Consequently after Informal dIscussIOns wIth the partIes, I receIved and revIewed the bulk of the relevant documentary matenal pnor to the matter convemng. That matenal Included an outlIne of the relevant chronology of events leadIng up to the gnevance, correspondence and documents relatIng to the gnevor's long-term Income protectIOn ("LTIP") claim, and a wIll-say statement from the gnevor's legal counsel In the cIvIl actIOn referred to later I receIved certaIn further documents at the outset of the heanng to complete the record. The partIes were agreed that I hear submIssIOns on the prelImInary obJectIOn brought by the employer on the basIs of the matenal before me The partIes are agreed that thIS decIsIOn IS wIthout preJudIce to theIr respectIve posItIOns In any other case, that IS, the decIsIOn wIll not constItute a precedent In respect of any other proceedIng. The partIes are further agreed that thIS decIsIOn may provIde abbrevIated reasons The partIes have reserved theIr nghts regardIng process In the event that thIS matter contInues ThIS gnevance alleges that the employer has been makIng Improper deductIOns from the gnevor's pay As clanfied at the outset the Issue IS not one of deductIOns but an allegatIOn that the employer has faIled In ItS oblIgatIOn under ArtIcle 423 of the collectIve agreement to pay penSIOn contnbutIOns on behalf of the gnevor The relevant portIOn of ArtIcle 42 3 provIdes The Employer will continue to make pension contributions and premium payments on behalf of the employee while the employee receives or is qualified to receive L.T.I.P benefits under the plan, unless the employee is supplementing a Workplace Safety and Insurance award. The background facts can be set out bnefly The gnevor was In receIpt of L TIP benefits from January 1992 untIl June 1994 At that tIme further benefits were demed on the basIs that the gnevor was not totally dIsabled from any occupatIOn. The gnevor filed a gnevance seekIng the reInstatement of hIS L TIP benefits Subsequently a cIvIl actIOn was brought by the gnevor agaInst the Insurance company also seekIng reInstatement of hIS L TIP benefits On July 10 1997 the gnevance was referred to arbItratIOn. On September 15 1997 the gnevor wIth legal counsel, settled the cIvIl actIOn In consIderatIOn of the amount of $150 000 00 and sIgned a release On September 26 1997 the gnevor confirmed to the employer that he had wIthdrawn hIS gnevance The umon dId not assert that the wIthdrawal was IneffectIve absent ItS express consent. 3 The employer argues that the gnevor cannot assert any nghts under ArtIcle 42 3 of the collectIve agreement In lIght of the terms of the release he sIgned. The umon argues that the terms of the release cannot be so broadly construed. The relevant portIOns of the release provIde IN CONSIDERATION OF the payment by Confederation Life of the sum of One Hundred Fifty Thousand Dollars ($150 000 00), all inclusive, to the Undersigned [the grievor] the Undersigned in every capacity and on behalf of the heirs, executors, administrators, successors, and assigns of the Undersigned hereby releases and forever discharges Confederation Life Insurance Company - in Liquidation, its successors, assigns, representatives, directors, officers, employees, lawyers and agents, KPMG Inc. (formerly Peat Marwick Thomas Inc.), its successors, assigns, representatives, directors, officers, employees, lawyers and agents, the Office of the Superintendent of Financial Institutions, its successors, assigns, representatives, directors, officers, employees, lawyers and agents, The Canadian Life and Health Insurance Compensation Corporation (CompCorp), its successors, assigns, representatives, directors, officers, employees, lawyers and agents, The Manufacturers Life Insurance Company its successors, assigns, representatives, directors, officers, employees, lawyers and agents, and her Majesty the Queen in Right of Ontario, Represented by the Minister of Government Services, its successors, assigns, representatives, directors, officers, employees, lawyers and agents (collectively referred to as Releasees') and the property of the Releasees from any and all claims, demands, sums of money, debts, covenants, bonds, accounts, actions, causes of action, rights, obligations and liabilities of every kind and nature whatsoever which the Undersigned has had or claims to have had or now has or claims to have or may later have or claim to have against the Releasees and the property of the Releasees which arise out of or are in any manner whatsoever, directly or indirectly, connected with or related to any obligations under the said policy THE UNDERSIGNED represents, warrants and agrees that, in executing this Full and Final Release Agreement, the Undersigned does so with full knowledge of any and all rights which the Undersigned may have with respect to the Releasees and that the Undersigned has received independent legal counsel from the Undersigned s lawyer, with regard to the facts involved in the matter herein and with regard to the Undersigned s rights and asserted rights arising out of the said facts. The Undersigned further states that the Undersigned does not rely and has not relied on any representations made by the Releasees with regard to the Undersigned s rights or asserted rights in this connection and the Undersigned hereby assumes the risk of any mistake of fact in connection with the true facts involved in said matter and with regard to any facts which are unknown to the Undersigned relating thereto IT IS UNDERSTOOD AND AGREED that the payment of the said sum is not deemed to be an admission of liability on the part of the Releasees The Releasees further agree to waive any rights in respect of a set-off to the Undersigned s disability benefits from his entitlement for benefits through the no-fault insurer (emphasis added) There IS no dIspute that the release Includes a release of employer oblIgatIOn. The Issue IS the extent of that release The umon argues that the claim at Issue In the gnevance IS not "dIrectly or IndIrectly connected wIth or related to any oblIgatIOn under the Said polIcy" Rather the umon argues, the penSIOn contnbutIOn IS a collectIve agreement nght. The umon also argues that the employer IS attemptIng to CIrcumvent the umon, as It was not a party to the cIvIl actIOn or the release The umon 4 argues that the employer cannot do IndIrectly what It could not do dIrectly that IS, negotIate dIrectly wIth an employee regardIng the release of collectIve agreement nghts ArtIcle 42 of the collectIve agreement sets out the nghts and oblIgatIOns of employees and the employer In respect of LTIP coverage and claims UnlIke other collectIve agreements thIS agreement sets out In some detaIl the specIfic reqUIrements of any plan In effect. There IS no dIspute that any Issue of whether one IS "totally dIsabled" wIthIn the meamng of that term IS determIned, at least ImtIally by the Insurance company There IS also no dIspute that the Insurance company IS not the Insurer Rather the employer bears the nsk of paYIng, not only ItS portIOn of the premIUm cost, but also ultImately the cost of the benefits In thIS context It IS perhaps not surpnSIng that any release obtaIned by the Insurance company Includes a release of employer oblIgatIOn. The Insurance company IS essentIally actIng as an agent of the employer In these CIrcumstances It IS dIfficult to draw the kInd of dIstInctIOn between the polIcy and any correspondIng collectIve agreement nght asserted by the umon. The polIcy IS arguably a creatIOn of the collectIve agreement. For example, the defimtIOn of 'total dIsabIlIty" IS found In ArtIcle 42.2 4 of the collectIve agreement. The polIcy's defimtIOn must be consIstent WIth that collectIve agreement reqUIrement. The umon acknowledges that ItS posItIOn on the ments of the gnevance would necessanly Involve the InqUIry of whether (at the relevant tIme) the gnevor IS "receIv[ing] or IS qualIfied to receIve L TIP benefits" as reqUIred by ArtIcle 42 3 It further acknowledged that such an InqUIry at least wIth respect to whether the gnevor was qualIfied to receIve benefits, would Involve the Issue of whether he was totally dIsabled, that IS, a medIcal InqUIry That IS the Issue the partIes to the cIvIl actIOn chose not to lItIgate The workplace partIes were precluded from an InqUIry Into that Issue by the wIthdrawal of the gnevance seekIng benefits Moreover the InqUIry Into whether the employee was totally dIsabled would flow from ArtIcle 42 2 4 of the collectIve agreement as reIterated by the terms of the polIcy not from ArtIcle 42 3 It makes lIttle sense to conclude that thIS sub-artIcle In the collectIve agreement, contaIned wIthIn the broader provIsIOns of ArtIcle 42, could found an Independent cause of actIOn to determIne entItlement to pensIOn contnbutIOns Under thIS approach, an employee could pursue a gnevance 5 seekIng L TIP benefits, go through the claims process wIth the Insurance company appeal any demal, and finally be demed benefits after a full InqUIry Into the medIcal consIderatIOns Yet that employee could then, under the umon's argument, pursue an Independent claim to penSIOn contnbutIOns and reqUIre the partIes to reVIsIt all of the medIcal consIderatIOns under ArtIcle 423 It seems hIghly unlIkely that the partIes Intended such an opportumty or outcome, a conclusIOn supported by the reference In ArtIcle 42 3 to the words "under the plan" It IS In that context that the words of the release need be consIdered. The gnevor sought to enforce a claim for L TIP In two forums He ultImately chose to proceed In the cIvIl context. He has, In exchange for a monetary settlement, released any Interest In purSUIng the necessary factual foundatIOn for a claim under ArtIcle 42 3 The monetary settlement he obtaIned cannot be construed as benefits as the release expressly stIpulates that there has been no admIssIOn of lIabIlIty for benefits (see also Re Ott([l1,a-Carlton (Regional Municipality) and C UP.E. Loc 530 (Jacques) (2000) 88 L AC (4th) 7 (Burkett) The gnevor has also waived any and all claims anSIng out of the facts relatIng to the Issue of hIS entItlement to benefits, and has done so wIth an acknowledgement of "full knowledge of any and all nghts whIch [he] may have wIth respect to the [employer]" Both the gnevor and hIS legal counsel were aware of hIS concurrent and outstandIng gnevance seekIng reInstatement of L TIP benefits In lIght of the terms of the release the gnevor must be taken as havIng knowledge of ArtIcle 42 3 of the collectIve agreement. To the extent that the umon was not a party to the release, there IS an Issue of the remedIal dIscretIOn as noted In Re Ott([l1,a-Carlton, supra. Even acceptIng the umon's InterpretatIOn, It would be Inappropnate to award an IndIVIdual remedy In CIrcumstances where the IndIVIdual has released all oblIgatIOns gIVIng nse to that remedy WhIle the umon has an Interest In advancIng arguments as to the proper InterpretatIOn of the collectIve agreement, thIS IS not a polIcy gnevance It eXIsts pnmanly to provIde a remedy to the gnevor I find that the claim under ArtIcle 42 3 IS a claim or cause of actIOn that IS IndIrectly If not dIrectly connected wIth or related to an oblIgatIOn under the polIcy The determInatIOn of entItlement to benefits under the defimtIOn of total dIsabIlIty lIes at the heart of the polIcy It also lIes at the heart of the applIcabIlIty of ArtIcle 423 ConsIstent WIth the decIsIOn In Re Ott([l1,a-Carlton, supra, I find that gIven the release executed by the gnevor I would not be prepared to "upset the bargaIn entered 6 Into by the gnevor" by engagIng a process to consIder a remedy that IS condItIOnal upon receIpt of, or beIng qualIfied to receIve benefits that the gnevor has agreed not to pursue HavIng regard to the above thIS gnevance IS hereby dIsmIssed. Dated at Toronto thIS 1 ih day of December 2002 VICe-Chair