GSB# 2022-1365

UNION# 2022-0736-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Russell)

Union

• and -

The Crown in Right of Ontario (Ministry of Public and Business Service Delivery)

Employer

BEFORE

Annie McKendy

Arbitrator

FOR THE UNION

James Craig Morrison Watts Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 25, 2023

Decision

1This is a Decision regarding a motion brought by the Employer that the substance of this Grievance is within the exclusive jurisdiction of the Workplace Safety and Insurance Board and not that of this Board.

2The Grievance was scheduled pursuant to article 22.16 of the collective agreement in place between the parties. I provide only brief reasons in keeping with article 22.16, and this Decision is without precedent.

3The parties provided me with a chronology of events which was agreed to contain all of the facts upon which they would seek to rely for the purpose of the motion and the merits. The background facts relating to the payment of the Grievor by the Employer and by WSIB are quite complex, and I thank counsel for both parties for their diligent efforts in setting out the facts succinctly and clearly.

4The Grievance arises because the Grievor believes that he has been paid improperly as a result of a workplace injury, which occurred in 2011. The Grievor’s 2011 injury was found to be compensable by WSIB. At the time of his initial WSIB claim in 2011, the Grievor elected to be placed on the Employer’s payroll at the outset of each calendar year and to use his annual credits until he exhausted them. These credits were typically exhausted around the end of April of each year. His election to use his annual credits allowed him to accrue pension contributions and receive benefits during the period he was on the payroll. When the annual credits were exhausted each year, he was placed on unpaid leave by the Employer, and reverted to receiving benefits from WSIB for the remainder of the year.

5In 2017 the Grievor was accommodated to a position in a different department from his pre-injury position. WSIB awarded a Partial Loss of Earnings (“PLOE”) award in March of 2018 to compensate him for the difference between his pre-injury wages and his lower earnings in the accommodated position.

6In early 2019 the Grievor had a reoccurrence of his injury and reopened his 2011 WSIB claim. In keeping with his earlier election, he again began receiving payment from the Employer until approximately April using his annual credits. In 2019 and beyond, he also received a top-up from WSIB in addition to the annual credits, as a result of the wage differential and resulting PLOE award. Once his credits were exhausted, he reverted to receiving payments from WSIB exclusively.

7Between 2019 and 2022, the Grievor raised concerns that the amount he was receiving during the period he was on the Employer’s payroll was incorrect. He raised concerns regarding the payments in September 2019, January 2020 and February 2022. Each time the WSIB provided a detailed breakdown of how the calculation was made. In addition to the chronology of events, I accepted the Grievor’s verbal stipulation that he believed that the amount of money he was being paid between January and April was effectively decreasing. No supporting facts were provided beyond his stipulation.

8On 23 March 2022, the Grievor filed the instant grievance, asserting that the Employer had contravened Article 2 (Management Rights), Article 3 (No Discrimination/ Employment Equity), Article 7 (Pay Administration) and Article 9 (Health & Safety) of the Collective Agreement.

9In their submissions, the Employer referred me to s. 26 of the Workplace Safety & Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, and to the decision in Maple Leaf Foods Inc. v. United Food and Commercial Workers, Local 175, 2018 CanLII 69918 (Surdykowski) (hereinafter “Maple Leaf Foods”), in support of their position that the WSIB has exclusive jurisdiction to address any miscalculation of the Grievor’s entitlement.

10The Union emphasized that the language of the Grievance referenced errors in payroll which properly fall within the jurisdiction of the Board.

11I have considered the evidence before me and find that the substance of the issues raised by the Grievor relates to the calculation of his PLOE benefits during the first four months of the year during which he was on the Employer’s payroll. Nothing in the agreed chronology pointed to any error in payment made by the Employer. Rather, the Grievor appears to dispute the explanation provided by WSIB of his payments in response to his requests for clarification. In keeping with the decision in Maple Leaf Foods, I find that the essential character of this dispute relates to the calculation of his WSIB benefits and therefore falls within the exclusive jurisdiction of the WSIB/WSIAT.

12Additionally, the Grievor sought to stipulate that in 2023 he was advised he would remain on the Employer’s payroll until July instead of April as he had in previous years. He alleged that this was evidence that the Employer was paying him improperly. The Employer submitted that this incident did not fall within the scope of this Grievance. I agree. There were no facts before me relating to the 2023 top-up period or how the calculations were made. As such, these circumstances arising almost a year after the filing of this Grievance are not before me and may be addressed by the parties in due course.

13The Grievance is dismissed.