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HomeMy WebLinkAbout2008-2946.Damani.11-03-04 Decision Commission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD 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 7pO   Fax (416) 326-1396 7pOpF   GSB#2008-2946 UNION#2008-0504-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Damani) Union - and - The Crown in Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFOREKen Petryshen Vice-Chair FOR THE UNIONJackie Crawford Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYERGeorge Parris Ministry of Government Services Legal Services Branch Counsel HEARING January 11, 2011. - 2 - Decision [1] In a grievance dated September 16, 2008, Ms. Y. Damani alleged that the Employer contravened the Collective Agreement. After a considerable amount of time and effort devoted to resolving the grievance during mediation at the Grievance 6HWWOHPHQW%RDUG ³WKH*6%´ WKHSDUWLHs and Ms. Damani executed Minutes of 6HWWOHPHQWGDWHG-XO\ ³WKH026´ 8QIRUWXQDWHO\VRme difficulties arose with respect to the implementation of some of the terms of the MOS. Ms. Damani alerted OPSEU to these difficulties in late 2009 and the parties made several attempts to resolve them informally. In July 2010, the parties again sought the assistance of the GSB. A number of dates were scheduled with the final hearing held on January 11, 2011. In describing the implementation issues, I have taken into account the confidentially provision in the MOS. [2] The MOS provided that Ms. Damani would retire from the OPS on March 31, 2010, and that at that time she would be reclassified from an OAD8 to an OAD9, at the top level, retroactively for five years and paid the difference in salary for the five year period. It also provided for payments to Ms. Damani totalling $40,000, without deduction. Apart from amounts specifically referred to in the MOS, Ms. Damani would be entitled to nothing further on retirement except severance pay. [3] A number of issues arose following the execution of the MOS. The Employer was late in making the payment of $40,000 to Ms. Damani. This payment had been sent to the wrong address. Ontario Shared Services misinterpreted the MOS and advised Ms. Damani that she was not entitleGWRVHYHUDQFHSD\0V'DPDQL¶VSHQVLRQ - 3 - entitlement was calculated without regard to the MOS and was, therefore, inaccurate. Ms. Damani disputed the correctness of the retroactive payment following her reclassification to OAD9. [4] In attempting to resolve the implementation issues, the parties had difficulty establishing accurate records of what had occurred, and how payments due under the MOS were calculated and paid. In part, some delay in addressing issues was due to the OPS transition to a new Workplace Information Network system recording employee attendance and absences. Additionally, Ms. Damani retired without a complete record of her attendance and absence history. By January 11, 2011, the parties had resolved and corrected most of the outstanding matters relating to the MOS. The parties determined that the $40,000 payable to Ms. Damani pursuant to paragraph 2, 3 and 4 of the MOS had been sent to the wrong address. The payment was reissued and received by Ms. Damani on March 25, 2010. The correctness of the retroactive reclassification payment was checked and its accuracy verified by OPSEU and the Employer. Ontario Shared Services SURFHVVHG0V'DPDQL¶VVHYHUDQFHSD\PHQWand it was deposited into her Credit Union account on October 22, 2010. The payment of $24,617.50, less deductions of $7,385.25, resulted in a net severance payment of  - 4 - [5] A previous issue in dispute concerned Ms. Damani's claim that she was entitled to a payout of vacation credits on retirement. The Employer has consistently maintained that the MOS did not provide entitlement to vacation pay and alternatively that the number of vacation credits being claimed was excessive. At the hearing, the Employer agreed to pay Ms. Damani 37.5 vacation days, which would have been her maximum vacation entitlement upon her retirement in March 2010. What remains unresolved is Ms. Damani's request to have this payment made without deductions to compensate her for the delayed implementation of the MOS. [6] The other unresolved issue relates to the severance payment of $17,232.51 (after deductions) which was deposited into Ms. Damani's Credit Union account on October 22,2010. Ms. Damani claims that she had instructed the Employer to deposit her severance payment into her RSP account. At the hearing she produced a written direction to this effect. If the Employer had complied with this direction, the amount of $24,617.50 would have been deposited into Ms. Damani's RSP account, without any deductions. The Employer indicated that it had not received the direction and therefore was unaware of Ms. Damani's request. The Union only became aware on January 11, 2011, that the severance payment had been made in October of2010 and that Ms. Damani had directed the Employer to deposit the severance pay into her RSP account. The Employer offered to resolve this matter by reissuing the severance payment and depositing the full amount without deductions into her RSP account as long as Ms. Damani first repaid the severance money deposited into her Credit Union account in October 2010. Ms. Damani indicated that she could not accept this offer because she had spent most if not all of the money received as severance and could not now repay it. Ms. - 5 - Damani requests that the Employer pay to her an amount equal to the deductions it made to her severance pay because it failed to follow her direction to deposit the severance payment into her RSP account. [7] Before addressing the unresolved issues, I note that approximately 1I1z years have passed since the MOS was executed. I am satisfied that the parties attempted in good faith to resolve the implementation issues that arose. The lengthy process has been somewhat frustrating for all of the participants, particularly for Ms. Damani. [8] I will first address whether it is appropriate for the Employer to pay Ms. Damani 37.5 days of vacation pay without the normal deductions because of the length of time it took to fully implement the MOS. As noted previously, the Employer has agreed to make the vacation payment without regard to whether she is legally entitled to a vacation payout and to the number of vacation credits Ms. Damani had when she retired. In essence, the Employer is prepared to make this payment in order to resolve all of the outstanding issues. The Employer is not prepared to make the payment without withholding the normal statutory deductions. It obviously cannot be faulted for taking a position consistent with its legal obligations. There is no reasonable basis for me to direct the Employer to pay the 37.5 vacation days without deductions to Ms. Damani. Nor is it appropriate to direct the Employer to pay Ms. Damani an amount equivalent to the deductions as compensation for the time it took to implement the MOS. Therefore, I simply direct the Employer forthwith to pay Ms. Damani an amount equal to 37.5 days - 6 - based on her hourly rate as of the date of her retirement, less the normal statutory deductions. [9] There is also no basis for me to direct the Employer to pay Ms. Damani an amount equal to the deductions it made from her severance pay. Ms. Damani should have realized that the sum of $17,232.25 paid into her Credit Union account on October 22,2010, was her severance pay. She had the opportunity to raise in a timely way the issue of the Employer's alleged failure to deposit the entire severance amount into her RSP account and to have the matter corrected. Ms. Damani is not now in a position to repay the $17,232.25 so as to allow the Employer to comply with her direction. These are not the circumstances in which the Employer should be compelled to pay Ms. Damani an amount equal to the deductions it took from her severance payment. It is not the fault of the Employer that her direction to deposit the entire severance payment into her RSP account cannot now be fulfilled. [10] Having determined the two remaining issues in dispute, and subject to the payment of vacation pay to Ms. Damani, it is my conclusion that the MOS has been fully and appropriately implemented. This proceeding is hereby terminated. Dated at Toronto th~s 4th day of March 2011.