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Home My WebLink About2018-0648.Bartlett.2020-06-29 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 1000/94; 2018-0648 OPSEU# 94E166; 2018-0234-0078 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Bartlett) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Esther Song Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel HEARING DATE June 8, 2020 (via videoconference) -2- DECISION [1] There are two matters before me. The first relates to a settlement reached between the parties on April 10, 1996 of a grievance dated June 30, 1994. On the agreement of the parties, the terms of that settlement were made an order of the Board on April 29, 1996 (Board File No. 1000/94). The Union alleges the Employer has breached the terms of that settlement and Board order. The second relates to a grievance dated April 2, 2018 (Board File No. 2018-0648) alleging the Employer has breached the terms of the collective agreement. Both matters derive from the same set of facts. The parties agree that I have jurisdiction to determine both. [2] The Grievor was first employed in 1985. In 1994 her employment was terminated. She grieved. While terminated, she elected to cash out her pension contributions for 1985 to 1994 and received approximately $23,000. In 1996, she was reinstated to employment pursuant to the settlement. The settlement provided the Employer would “make the grievor whole for the period of her discharge”. The Union asserts: “It was clearly the parties’ intent that making the grievor whole included restoring her pension credit/service date to 1985.” The Grievor alleges she assumed the Employer had done so and only learned that it had not in 2018 when she started considering retirement. The Grievor seeks to have the Employer pay her the cost of buying back her pension credits/service for the period 1985 to 1994 as calculated by the OPSEU Pension Trust. That amount is approximately $280,000. [3] The Union provided the Employer with a statement of particulars. The Employer seeks to have both matters dismissed on the basis that those particulars fail to make out a prima facie case or in the alternative on the basis of timeliness. No Prima Facie Case [4] The test to be applied in determining whether or not a party has particularized a prima facie case is summarized in Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson): [6] The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is -3- reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed. [5] I turn first to consider the grievance dated April 2, 2018, which alleges the Employer’s failure to reinstate the Grievor’s pension contributions for the period August 6, 1985 to June 24, 1994 constitutes a violation of the collective agreement. I note that Appendix 20 of the collective agreement consists of a letter of understanding which states: It is understood that, while pension issues are bargainable, the Sponsorship Agreement, the Pension Plan, the Trust Agreement, and any other ancillary documents concerning the Pension Plan do not form part of the Collective Agreement. [6] While the grievance refers to several Appendices of the collective agreement which in turn make reference to the Pension Plan, the Union has articulated no legal theory as to how the facts it has particularized could give rise to a breach of those Appendices, or of any other provision of the collective agreement. They have no apparent application to the facts alleged before me. Accordingly, the grievance which is the subject of Board File No. 2018-0648 is dismissed. [7] The focus of the Union’s argument is that the Employer’s failure to pay the cost of the Grievor’s pension contributions constitutes a breach of the terms of the 1996 Minutes of Settlement and the Board order incorporating those terms. The settlement provides as follows: The parties agree to a full and final settlement of the above noted grievance without precedent and without prejudice to any future and/or similar matter on the following terms: 1. Management agrees to revise Mr. McConnel’s letter of June 29/94 to indicate that the grievor used poor professional judgement in that she failed to report to management that she received personal correspondence from an inmate. 2. Management agrees to permanently reinstate the grievor to the position of Correctional Officer at the Waterloo Detention Centre effective June 29/94 and to the full duties of Correctional Officer immediately. 3. Management agrees to substitute the grievor’s discharge with a two (2) week (80 hour) suspension without pay. 4. Management agrees to make the grievor whole for the period of her discharge including the payment of interest based on the Hollawell [sic: Hallowell] formula. 5. The grievor and the Union agree to withdraw the noted grievance. 6. This settlement shall become an order of the Board. [8] The Union argues the Grievor’s decision to cash out her pension was a result of the termination of her employment in 1994. She made that decision after her -4- employment was terminated as she looked for ways to support herself financially. She should be placed in the same position as she would have been in had she not been terminated, including restoration of her pension. Further, the cashing out of her pension took place during “the period of her discharge”, and thus within the period for which the Employer agreed to make her “whole”. [9] In a labour arbitration context, damages encompassed by the term “make whole” do not extend to every conceivable loss, but rather are limited to those which were reasonably foreseeable. For example, where there is a contributory pension plan as was the case here, it might be reasonably foreseeable that an employee would have exercised a right to make pension contributions during a period of time but for the fact of discharge. Accordingly, the concept of “making whole” might extend to permitting an employee to make those contributions retroactively, thereby triggering an obligation on the part of the employer to match those contributions, or alternatively, if this is not possible, putting the employee in the same position as she would have been if it were. It might even be that the concept extends to permitting an employee to buy back contributions cashed in as a result of her discharge, once again triggering an obligation on the part of the employer to match those contributions. I do not, however, need to decide any of those issues. [10] In this case, the Grievor does not seek the right to buy back her contributions and trigger an obligation on the part of the Employer to match those contributions. Rather she seeks to be compensated by the Employer for the current value of her own contributions for the period 1985 to 1994, as calculated by the OPSEU Pension Trust. Effectively, the Grievor now seeks not only to be paid again the amount she received for her contributions in 1994, but the increase in value of those contributions had she left them in the OPSEU Pension Trust to the present time, without any deduction for the use (notional or otherwise) she has had for the last 26 years of the amount paid to her in 1994. [11] Read generously, on the Union’s particulars it was reasonably foreseeable the Grievor would cash out her pension contributions as a result of the termination of her employment. She did not, however, experience a loss in doing so. Rather, the Grievor received the value of those contributions at the time she cashed them out. She was therefore “whole” in terms of the value of those contributions at the point in time she received them. [12] No other legal theory has been identified which would make such damages reasonably foreseeable, nor are the requisite elements of any such theory apparent. There is no such entitlement under the collective agreement. There is no suggestion the OPSEU Pension Trust requires the Employer to pay the employee’s share of pension contributions in such circumstances. There is no suggestion the issue was raised when the settlement was discussed. There is no suggestion the Employer prevented her from buying back those contributions at an earlier point in time. The particulars assert the Grievor “reasonably assumed the Employer had … ensured her pension was backdated to her original date of hire.” Even assuming the Grievor’s assumption was reasonable, -5- it does not give rise to any duty on the part of the Employer to ensure that her pension was backdated. [13] Accordingly, the allegation there has a been a breach of the settlement dated April 10, 1996, or the Board order dated April 29, 1996 incorporating the terms of that settlement, is also dismissed. [14] In the result, it is not necessary for me to address the Employer’s arguments with respect to timeliness. Dated at Toronto, Ontario this 29th day of June, 2020. “Ian Anderson” ______________________ Ian Anderson, Arbitrator