GSB#2009-2825

UNION#2010-0337-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gallina)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Barry B. Fisher

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

CONFERENCE CALL

December 18, 2012.

Decision

I have been asked to rule on certain issues regarding the reinstatement of the Grievor as of February 24, 2011.

The parties have agreed that this award is covered under Article 22.16.

1As a result of his termination the Grievor incurred credit card interest charges and utility charges that he claims that he would not have incurred if he had not been terminated. In addition he had to cash in a RRSP and incurred both tax liability and fees because of this.

The Collective Agreement covers the issue of interest on awards.

22.18 INTEREST

22.18.1 Where monetary compensation and/or damages are decided to be owing for a grievance, interest shall be payable as follows: (a) for the period commencing thirty (30) days prior to the date the grievance was filed until the decision: (1) interest shall be calculated at the quarterly prime rates, set by the Bank of Canada, averaged yearly for that period. (2) interest will be paid on all amounts owing, except where compensation is payable for back pay or any other amount that accrues over time, interest shall be calculated on one half of the compensation. (b) for the period from the date of the decision until the compensation and/or damages is paid, interest shall be payable on all amounts owing, payable at the prime rate set by the Bank of Canada, for the quarter before the decision.

The parties have negotiated a specific provision that covers this situation. As he has been paid interest in accordance with this Article, he has no further claim. Although the cashing in of his RRSP may not be covered by this clause, most of this cost relates to the tax withheld at source. As a RRSP is only a tax deferral investment, the actual tax cost is something less. In any event, we do not generally delve into the personal financial matters of Grievors to determine if it was reasonable for him to cash in a RRSP as opposed to some other method of raising cash.

I also note that the Grievor did receive $1439.48 by way of interest.

This claim is denied.

2The Grievor claims that part of the monies paid by the Employer to EI was by way of a penalty for late payment by the Employer. If that it so, this late penalty should not be the responsibility of the Grievor. If the Grievor can prove that this amount included a penalty for late payment, he shall be reimbursed for that amount.

3Upon his reinstatement on February 24, 2012, the Grievor was not assigned to a position until almost a year later, when he was assigned to the job of Maintenance/Groundskeeper. In this interim period he was paid his YSO base rate but did not receive any premium payments. He is claiming those premium payments.

The Grievor is disputing his assignment to the position of Groundskeeper/Maintenance. I will be deciding this issue in February of 2013. If I find that the assignment was appropriate, then that assignment should have taken place immediately upon his reinstatement and he would not have earned any YSO premiums from that date forward. If I find that the assignment was inappropriate, then I will look to see whether in the proper assignment he would have earned any premium pay if he had been reinstated as of February 24, 2011. I will also look at the YSO rate that he received during this interim period and the rate of the job that I find is appropriate and make the necessary adjustments.

4The Grievor claims that the Employer improperly allocated his retro pay between 2010 and 2011 and as a result he has a higher tax burden that he should, including losing the benefit of the HST credit and the Child Care Tax Credit.

In order to better understand this issue, I order the Employer to provide a detailed explanation of the Grievors’ 2011 T4, the calculation of the EI overpayment, and the allocation amounts between 2010 and 2011. This is to be provided to the Union by January 21, 2013. If the Grievor has any objection to the allocation and/or the EI repayment, he is to set out his detailed objections by February 14, 2013.

5I will deal with the remaining claims at the February hearing.