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

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Jackie Crawford Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

George Parris Ministry of Government Services Legal Services Branch Counsel

HEARING

January 11, 2011.

Decision

1In 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 Settlement Board (“the GSB”), the parties and Ms. Damani executed Minutes of Settlement dated July 31, 2009 (“the MOS”). Unfortunately, some 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.

2The 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.

3A 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 entitled to severance pay. Ms. Damani’s pension 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.

4In 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 processed Ms. Damani’s severance payment and 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 $17,232.25. Ms. Damani’s pension entitlement was recalculated by OPTrust on the basis of the retroactive reclassification and the Employer confirmed that the correct salary amounts were provided to OPTrust on November 15, 2010. With the clarification and resolution of these matters, the hearing on January 11, 2011, focused on two unresolved issues.

5A 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.

6The 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 of 2010 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. 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.

7Before addressing the unresolved issues, I note that approximately 1½ 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.

8I 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.