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HomeMy WebLinkAbout2007-3893 Lalande 08-10-28 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 2007-3893 GSB# 2008-0628-0002 UNION# IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Lalande) Union - and - The Crown in Right of Ontario (Ministry of Health and Long -Term Care) Employer BEFORENimal V. Dissanayake Vice-Chair FOR THE UNIONDonna Walrond Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYERKylie Humphreys Employee Relations Consultant Ministry of Health and Long-Term Care TELECONFERENCE:October 23, 2008. Decision [1] The instant grievance dated February 21, 2008 was referred to me pursuant to the Mediation/Arbitration procedure set out in article 22 of the collective agreement. [2] The grievor, Ms. Joanne Lalande, had filed a grievance dated January 22, 2007 claiming discrimination in contravention of article 3.1. (GSB file # 2007- 0100). [3] By Minutes dated September 7, 2007, the parties settled the grievance. The terms of the Minutes of Settlement included, inter alia, the following provisions: 2. The parties agree that the Employer will pay the Grievor the amount of $2500.00 (gross amount) less statutory deductions as pain and suffering in the resolution of this grievance. 6.This memorandum of settlement constitutes full and final settlement of all matters which were or could properly have been raised in the above noted grievance. The parties agree and acknowledge that they have not made any verbal or other agreement beyond what is contained in this written settlement. [4] In implementing the terms of the settlement, the employer made statutory deductions from the amount of $2500.00 referred to in paragraph 2. In the instant grievance, the grievor claims that thereby the employer breached the terms of settlement. [5] The union pointed out that that paragraph 2 of the minutes explicitly states that the amount of $2500.00 is payable ?as pain and suffering?. It is submitted that as a matter of law, damages for pain and suffering are not subject to statutory deductions. Therefore, the employer breached the 2 settlement by failing to comply with its undertaking to pay the grievor the amount of $2500.00 as damages for pain and suffering. [6] The employer relied on a letter dated July 20, 2007 it had sent to the union in relation to the original grievance. It sets out the employer?s reasoning that the grievor could have used her vacation credits to top up her sick pay, and that the grievor?s total claim under the grievance was $1894.09. The letter concludes with the sentence ?Therefore, I am hopeful this grievance can be considered resolved.? [7] The employer submits that while the grievor?s losses were calculated to be $1894.09, it agreed to pay $2500.00 because it was the employer?s intention to make statutory deductions from the amount paid. It is pointed out that paragraph 2 of the settlement explicitly states ?less statutory deductions?. [8] Paragraph 2 of the settlement as drafted contains an internal contradiction. On the one hand, it contemplates that the amount of $2500.00 is paid as damages for pain and suffering. As a matter of law, such damages are not subject to statutory deductions. On the other hand, however, the paragraph also states that the payment is ?less statutory deductions?. [9] In all of the circumstances, I conclude that the grievance must succeed. I do not doubt that in arriving at the amount to be paid in settlement of the grievance, the employer would have considered the grievor?s entitlement for sick time top up and the statutory deductions applying to the sum. However, there is no evidence that the union or the 3 grievor agreed to that method of calculation. In fact, the evidence is that the union refused to settle on the basis of the proposal contained in the employer?s letter. The only basis of the settlement was the terms of the Minutes of Settlement executed on September 7, 2007. Paragraph 6 explicitly states that. [10] The parties have executed minutes which clearly provide for damages for pain and suffering in the amount of $2500.00. That is the term the union agreed to in executing the settlement. The union has not agreed to any payment as compensation for loss of sick time. Had the employer proposed to the union its own reasoning, i.e. that the amount agreed to represents the grievor?s claim for top-up (less statutory deductions), the union would have had to decide whether it would settle on that basis. The union, however, did not have that opportunity. While the minutes also refer to ?less statutory deductions?, those deductions contemplated are from a payment of damages for pain and suffering. Such a deduction is contrary to law and must be disregarded. [11] For the foregoing reasons, the grievance is allowed. The employer is directed to pay to the grievor the sum deducted from the amount of $2500.00 as statutory deductions. I remain seized in the event of disputes as to implementation. th day of October 2008. Dated at Toronto, this 28 ________________________ Nimal Dissanayake Vice-Chair 4