P/0009/99
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Hall
Grievor
- and -
The Crown in Right of Ontario (Ministry of Health)
Employer
BEFORE
John A. Willes
Vice-Chair
FOR THE GRIEVOR
John Ryder-Burbidge, Counsel Hurley, Fasano Barristers and Solicitors
FOR THE EMPLOYER
Yasmeena Mohamed Counsel, Legal Services Branch Management Board Secretariat
HEARING
June 23, 1999; November 19, 1999.
Decision
The Grievance in this matter came on for hearing as a mediation/ arbitration, at which time the parties reached a settlement of the grievance. Proceedings in the arbitration were held in abeyance pending fulfillment of the terms of the settlement agreement by the parties, and at some time later, the parties notified the Public Service Grievance Board that certain difficulties had arisen with respect to the interpretation of their agreement. A hearing to present evidence and argument on the issues requiring interpretation was then scheduled for November 19, 1999.
At the November 19, 1999 hearing, the parties advised this Board that they were experiencing difficulties with the interpretation of clauses 3 and 5, which read as follows:
“The Employee will be entitled to claim and receive the usual sick pay benefits for the period commencing March 1, 1999 and concluding June 23, 1999. And the Employer will ensure payment of same through the KPH payroll department. The Employee undertakes not to pursue any further sick leave benefits including but not limited to LTIP/Long term Income Protection.
The Employer will pay the Employee a lump sum payment in the amount necessary to total, when added to the sick pay benefits referred to in clause 3 above, the sum of $90,000. Of said $90,000, the maximum permissible amount will be paid into an RRSP of the Employee’s choice, by way of a retiring allowance. The balance will be subject to the usual statutory deductions with-holdings (for tax, CPP and EI).”
Counsel for the parties noted that the unresolved issue was the interpretation of these two clauses with respect to the sum of $3,369.00 that was paid to the Grievor as a sick benefit while he was off work in March of 1999, a point in time during the period referred to in clause 3 above.
Counsel for the Grievor submitted that the Employer had the opportunity to raise the issue of payment of the sum to the Grievor at the time of negotiation of the Minutes of Settlement, but did not do so, and consequently led the Grievor to believe that the sum was not a part of the settlement amount. Counsel argued that the Employer was now estopped from including the $3,369.00 in the $90,000 settlement amount. Counsel for the Employer submitted that this Board should interpret the clauses in accordance with their plain meaning, and direct the Employer to pay the full amount of $90,000 in accordance with its terms.
Counsel for the Employer submitted that the payment of the $3,369.00 should be considered a part of the $90,000 amount referred to in Clause 5, as it represents a part of the sick benefits to be paid to the Grievor. Her position was that to interpret the agreement otherwise would result in ‘double dipping’ by the Grievor, as he had already received the $3,369.00 sick benefit payment for a part of the period in question.
In support of her argument, Counsel for the Employer cited: Barron v. Fridthjoffsson [1990] N.S.J. No. 319; Ratych v. Bloomer 1990 CanLII 97 (SCC), [1990] S.C.J. No. 37; OPSEU (Brun) and the Crown in Right of Ontario (Ministry of Health) G.S.B. 2539/96.
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This Board has carefully considered the arguments and submissions of the parties with respect to the interpretation of Clauses 3 and 5 of the Minutes of Settlement. Clause 3, according to its plain reading obligates the Employer to pay the Grievor sick pay benefits for the period March 1, 1999 to June 23, 1999, and to ensure payment of the same. Clause 5 provides that the balance (subject to maximum RRSP and other deductions) would be payable to the Grievor.
The sick pay amount is a fixed calculation for the period of time noted in Clause 3, and payable in accordance with government regulations as to amount. On this basis it would be necessary for the Employer to include the $3,369.00 already paid to the Grievor, otherwise government payroll records would show double payment for a part of that period of time. If Clause 3 is to be interpreted as it stands, the partial payment of sick pay should be included in the total to cover the proper sick pay payment for the period March 1 to June 23, 1999.
Clause 5 provides for the disposition of the payment of the balance of the settlement amount after the Grievor has received payment of the total sick pay benefits he would be entitled to receive for the period March 1 to June 23, 1999. On the basis of the foregoing, then, this Board finds that Clauses 3 and 5 should be interpreted to include the $3,369.00 as a prepayment of a part of the sick pay benefits receivable by the Grievor under the terms of the Minutes of Settlement.
Counsel for the Grievor also submitted that this board should award costs to the Grievor, and in support of his argument stated that the Arbitration Act, S.O. 1991 c.17 binds the Crown, and would be applicable to arbitrations under the Public Service Act and its Regulations. Counsel for the Grievor stated that s.54(1) of the Arbitration Act permits an Arbitration Board to award costs, and should do so in this instance.
The Public Service Grievance Board is an arbitration board established under the Regulations of the Public Service Act to deal with specific disputes arising out of employment relationships with the Crown as the employer, and provides a procedure for the resolution of such disputes. The Public Service Grievance Board is a statutory board, with the right to establish its own procedural rules and policies (within limits), and while it may have the implied authority to award costs in egregious situations, it has followed a general policy of not awarding costs in matters that came before it. Given the circumstances of this case, this Board has no compelling evidence before it to suggest that it should deviate from its established policy, and on this basis is not prepared to make an award of costs.
The parties apparently have some other obligations under the settlement agreement to perform, and this Board accordingly directs the parties to do so forthwith. Should the parties have any further difficulties with the performance of the settlement, the Board will remain seised until the agreement is fully performed.
Dated at Toronto, this 13th day of January, 2000.