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HomeMy WebLinkAbout1981-0407.Ross.83-12-14 DecisionIN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Union: For the Employer: Hearings: OPSEU (Brenda Ross) Grievor - and - The Crown in Right of Ontario (Ministry of Municipa 1 Affairs and Housing) Employer P. G. Barton Vice Chairman H. Simon Member D. Olsen Member B. Ross--for herself S. T. Goudge, Q.C. Gowling & Henderson Barristers & Solicitors A. P. Tarasuk Consultant Central Ontario I ndustrial Relations Institute January 29, 1982 April 29, 1982 July 16, 1982 August 30, 1982 November 29, 1982 January 24, 1983 April 11 & 15, 1983 October 14, 1983 / J -2- SUPPLEMENTARY AWARD e The Grievor was improperly terminated from her position as of June 28, 1981. Following eight days of hearing before this Board, she was ordered reinstated. The Board remained seised of the question of compensation should it become a problem, and it has become a problem. Following bar success, in the Award dated June 14, 1983, the Employer responded by sending her a letter which she received on.July 7, 1983 asking her to report to her former job on July 11, 1983. She was not given much time to respond and was unable to return to work. During the course of the summer of 1983 the parties made some attempts to resolve the matter but were unable to do so and as a result a hearing was convened: During this period the Griever appealed the Award to the Ombudsman and applied to the Supreme Court of Ontario to enforce it. There is no doubt that the improper termination of the Grievor in 1981 caused her a considerable amount of financial hardship. In a letter of July 24, 1983 she indicated that what she considered to be a just remedy was as follows: Just remedy 1. Payment of my lost salary plus interest thereon; 2. Remainder of vacation 'pay; 3. Payment in full of my debt to the Unemployment In- surance Commission, this amount not to be deducted from my above-mentioned salary but to be an extra payment; 4. All insurance poi,icies - life insurance, dental in- insurance, medical insurance, income protection, etc. - to be turned on immediately; 5. Retu-n to the pension fund of the sum of n~oney forwarded to me as this :~oney ..cs sent to like nhrn my uncmploy- ment benefits and all my insurance policies had teen cut off and I had no income; r - 3 - 6. Maternity leave with pay to be provided to me; 7. Letter of apology is to be sent to me; 8. Lett,er of reference is to be provided to me - letter to be addressed "To k!hom it Nay Concern"; 9. Letter of retraction of unjust dismis,sal to be provided to me, the letter to be addressed "To Whom it May Concern"; IO. !\y choice of coming back to a completely non-smoking environment or applying for a disability pension; 11. Protection from harassment on the job and at home, especially and immediately that all telephone calls to my home cpase; 12. Furthermore, I feel that the Ninistry owes me an as-yet undetermined sum of money to compensate, at least partly, for the emotional, mental physical and financial suffering caused my family and me due to my reprehensibly unjust dismissal. At the hearing on October 14, 1983, we received evidence from the Employer and from the Grievor as to what had transpired since the termination date of June 28, 1981. The Griever's position was that she actively sought work during 1981 and that any positions she was able to obtain were refused to her because of interference from the Ministry of Housing. She was on Unemployment Insurance from July 12, 1981 to June 26, 1982. In connection with this Unemployment Insurance, she went to a Canada Employment Centre once a month during 1981 and until July 2, 1982. During the month of April 1982 she had a baby and ran into difficulties with the Unemployment Insurance people as of the date of birth, April 3, 1982. The Unemployment Insurance Commission was seeking a refund of February and March 1982 payments, on the basis that they were maternity benefits for which she allegedly did not qualify. In any event, she did receive some Unemployment Insurance benefits until June 26, 1982. Her evidence was that she continued to look for work during 1982 and lost another job at least, through the alleged 1 -4- interference of the Ministry of Housing. She presented a letter dated October 25, 1982 from an Employer thanking her for her interest in a position and rejecting her application. She indicates that she continued to look for work during the fall of 1982 but on November 22, 1982 she applied for Canada Pension Plan Disability Benefit. When she applied for this benefit, she filled out the forms with the help of a Mr. Gazan. The doctor to which the Canada Pension Plan administrators were referred was Dr. Lewin, of the Eglinton-Marie Medical Centre. As the Grievor put it at the hearing, she did not provide the Canada Pension Plan officials with the names of any other doctors except Dr. Lewin and Dr. Lewin's report was sent to them. As she put it: "Dr. Lewin's report was so good that Canada Pension Plan did not seek any other medical opinion." As a result of Dr. Lewin's report the administrators of the Canada Pension Plan notified the Grievor in March of 1983 that she qualified for a Disability Pension. According to the Canada Pension Plan Act, where a disability was in existence before the date of the application, the administrators are allowed to back-date the eligibility by twelve months from the date of application. In addition, there is a four month waiting period and as a result, acting on the advice of Dr. Lewin, although the administrators set the date of disability as December 1981, she became eligible for benefits as of four months from that date, i.e., March 1982. Accordingly, when in March of 1983 the Canada Pension Plan officials informed her, she received a cheque for benefits back-dated to March of 1982. -5- Her position at the hearing was that her disability date for the purposes of this Board should be December 1982. She based this allegation on the contention that she was "willing to crawl to work" during 1982 and on the evidence which we accept, that she was apparently seeking employment during 1982 In support of her contention she filed various doctor's certif icates from Dr. Lewin as follows: 1. July 7, 1983 - This is a certificate addressed to Mr. Ward Cornell, Minister of Municipal Affairs and Housing. It says: "You are well aware that Mrs. Ross is receiving a Disability Pension which was approved at the end of March 1983. . . . numerous medical certificates were presented at the hearing. These certificates still stand. . . . Please note that the pension is permanent." [the hearing referred to is the Grievance Settlement Board hearing]. 2. July 8, 1983 - This was a form filled out by Dr. Lewin to support an application by the Grievor for the Government of Ontario long-term disability benefits program (LTIP). It refers to her condition as being "allergy to tobacco and dust causing sino-bronchial disease and allergic dermatitis." It continues: "Unable to perform any meaningful gainful employment presently or in the future." 3. October 19, 1983 - This is a letter addressed "To whom it may concern" and indicates that there seems to be some confusion as to the Canada Pension report. -6- It continues: "As stated in my letter of October 3, 1983 the earliest date as to when the disability commenced is December 1982." It also indicates that . . . "the patient applied for jobs on her own (indecipherable) even though she was ill." It should be noted that the reference to a letter of October 3, 1983 is a reference to a letter from Dr. Lewin in which she indicated that "total disability commenced December 1982." 4. November 7, 1983 - This is a letter "TO whom it may concern" and reads as follows: "This is to certify that total disability commenced in December 1982 and the condition was due to sickness arising out of the patient's employment." The significance of the allegation that the disability started in 1982 and not in 1981, is that the Griever is claiming salary and benefits up until December 1982. These benefits would of course, include some maternity benefits because of the fact that she had a child in April 1982. What the Employer has done is take the assumed disability date of December 1, 1981 and calculate all of her benefits from that date. This was done on the assumption, which seems to us to be a valid one, that the Canada Pension Disability Benefit was awarded on the basis of Dr. Lewin's report which led to the back-dating of coverage to March, 1982. Before getting into detailed calculations, the Board must resolve the question of when was the effective date of disability. We have no doubt that the evidence shows that despite -7- her apparent willingness to work through 1982, the Grievor would not have been able to do so. Her position is that although she was handicapped she was not disabled and would have been willing to crawl to work. None of the evidence gives us any assurance that she would have attended a job. It is significant that the original problem with the Ministry arose when she missed a substantial amount of time from 1979 to 1981, culminating in the final four months prior to June of 1981. During that period she did not attend work at all. Her position throughout, since 1981, has been that she was disabled because of smoke and other problems in the work place and that as of late 1981 she was, as she put it "effectively disabled". All of the medical certif,icates referred to above indicate that the basis of her disability is a sickness arising out of her employment. It seems a reasonable assumption that this sickness existed when her employment terminated in 1981 and that she was disabled from working in 1981 and not later in 1982. The vast number of medical certificates filed by her indicating doctor's appointments and attendances for herself (not including those for her child) indicate that during 1982, the medical problems she had had in 1981 were continuing. Her attendances at the Canada Employment Centre, as mentioned above, were required for the purpose of maintaining her Unemployment Insurance benefits, something which she was required to do because she was not receiving any money. Thus it is our decision that she was effectively disabled by the fall of 1981 and that the disability date of the Canada Pension Plan Disability Benefit of December 1, 1981 is an entirely -8- reasonable one. For her to accept money in 1983 on the basis of being disabled in 1981 and to say that during that same earlier period she was able to work seems to us to be a bit inconsistent. We have some difficulty placing any reliance on the recent medical certificates, given the overwhelming evidence of her condition during 1981 and our observations of it in 1982. We might add that the only medical evidence we have seen in the entire matter which indicates an ability to return to work is a report of Dr. Lewin, apparently "reluctantly" prepared, in May 29 (1981) [Exhibit 561. It was apparent within a few weeks of this date, from the large number of medical attendances of the Griever, that the report was optomistic at best. The specifics of our Award with respect to the amount to which she is entitled are found in the attached summaries entitled ~~s~mmmm OF PAYMENT a DEDUCTIONS" (APPENDIX I). This sets out the amount which the Ministry calculated that she would be entitled to, based on a disability date of December 1, 1981. It will be noted from that summary that she will be entitled to a refund from OHIP of whatever payment she made on a pay-direct basis. She may be entitled to a UIC benefit from January 12, 1982 to May 31, 1982. In addition, she will by now have submitted a considerable number of medical and dental claims to the relevant insurers and will be entitled to the coverage provided by the relevant plans. It might be useful to set out here the bases upon which the above statement was prepared. According to the Ministry, between June 29, 1981 and December 1, 1981 she was entitled to a regular salary and benefit. The disability date is December -9- 1, 1981. Between that date and January 12, 1982, she was covered by the provincial Short Term Sickness Plan. These benefits ran out because she had no further sick leave credits and between January 12, 1982 and March 1, 1982 there was no STSP coverage, although she might well have been elegible for UIC benefits. From March 1, 1982 the Canada Pension Plan Disability started ($223.30 per month). Assuming a December 1, 1981 disability date, and application made in July for the government LTIP Plan, the LTIP benefits would start as of June 1, 1982. Thus as of June 1, 1982 she was eligible for and will receive, retroactively if not already received, both Canada Pension Plan Disability and LTIP coverage. The approach that we have taken above is that as much as possible the Board should'attempt to place the Grievor in the position in which she would have been had she not been improperly terminated. Although the Grievor contended that this meant that she should be entitled to salary and benefits for a considerable period following her termination, this was predicated upon the assumption that she would have been able to work during the period. As we have stated, despite her allegations, we find that she did not work in-fact from approximately February of 1981. Thus the calculation of her entitlement is based upon an assumption that she would have been covered by various sickness and disability plans as early as possible, which plans will support her for a considerable time in the future. - 10 - Our use of December 1, 1981 as the disability date might upon reflection, be seen as somewhat generous, but it was on that date that the Canada Pension Plan administrators found a disability to exist and it is a convenient one to choose. We remain seized. DATED AT London; Ontario this 14th day of December, 1983. \ Peter G. Barton Vice Chairman /’ Member Y D. Olsen Member - 11 - APPENDIX I STATEMENT-T & DEDUCTIONS MRS. BRENDA ROSS SALARY Salary 30.6.81 - 30.11.81 $6,668.64 Sick leave 1.12.81 - 7.1.82 1,726.27 Vacation 8.1.82 - 12.1.82 165.96 Less deductions of: Pension (PSSF 8 SAF) $ 599.27 Income Tax 605.47 LTIP 20.56 Union dues 84.00 Advance 14.7.83 1,300.00 Advance 14.10.83 300.00 Net Payment $8,560. 87 OHIP a) Arrears of premium have been forwarded to O.H.I.P. Ministry of Health should, therefore, reimburse her direct for premiums she has paid on a pay-direct basis. b) Assuming that L.T.I.P. beneEit will commence June 1, 82, she will have to reimburse us the sum of $184.00 representing premium for the period February to May, 198~2. BASIC LIFE INSURANCE Premium normally paid by Government for period July 1981 to July 1983 July81to Jan. 83 = 19 mths x +1:,;63 x 35C , Feb. 83 to July 83.= 6 mths x l&86& x 32C 22.78 TOTAL $101.66 Less,to be recovered from employee for period Feb. to May 82 = 4 x 11862 x 35C 1000 16.61 Net amount of refund $85.05 $78.88 r. SUPPLEMENTARY LIFE INSURANCE - 12 - Assuming that L.T.I.P. benefit commences June 1, 1982, she will have to pay premium for the month of May 1982. This amounts to $11.07. DEPENDENT LIFE INSURANCE Premium to be recovered from Mrs. Ross May 1982 to October 1983 = 18 months 8 64C a month $11.52 SUPPLEMENTARY HEALTH 8 HOSPITAL INSURANCE a) Confederation Life Insurance Co. is processing payment of her claim. b) No premium refund is due to her as her policy with Blue Cross is being regarded as a private policy and no co-ordination of benefits are involved. c) She will have to reimburse the Ministry premium for the period February to May, 1982. This amounts to $25.72. DENTAL PLAN a) Great-West Life Assurance.Co; has already paid her claim b) She is required to reimburse the Ministry the premium for’ the period February to May, 1982. This amounts- to $15.56. LONG TERM INCOME PROTECTION She is required to reimburse premium for the months of February to May 1982 amounting to $108.80. UNEMPLOYMENT INSURANCE The Ministry has to recover the sum of $5,372.00 from Mrs. Ross and forward it to the Unemployment Insurance Commission. NOTE : The amount represents payment of the U.I. benefit for the oeriod ~ulv 12, 1981 to June 26, 1982. However ,I since the-Ministry is only paying her upto January 12, 1982, she may well qualify for the benefit for the period January 13 to May 31, 1982 thus reducing the amount of the refund. vs., ” - 13 -. PUBLIC SERVICE SUPERANNUATION FUND The liability has not been calculated since payment is optional. MATERNITY SUB ALLOWANCE She will not qualify for this benefit as it wars effective after the effective date of L.T.I.P. ! ‘: I SUMMARY - 14 - Payments Due to Mrs. ROSS Net Salary $5,643.57 Basic Life Insurance Premium 85.05 $5,720.62 Deductions and Payments Due From Mrs. ROSS O.H.I.P. $ 184.00 Supp. Life Insurance 11.07 Dep. Life Insurance 11.52 Supp. Health & Hospital Ins. 25.72 Dental Plan 15.56 L.T.I.P. 108.80 U.I. Benefit 5,372.OO 5,727.87 Amount still due to Mrs. Ross 0.75,