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

Supplementary Decision

The Grievance in this matter came on for hearing as a mediation/ arbitration, at which time the parties reached an agreement and signed Minutes of Settlement on June 23, 1999. Issues arising out of the Minutes of Settlement resulted in a second hearing date on November 19, 1999. Following the second hearing date, this Board issued a decision on the matters then outstanding, including issues related to the monetary amount payable.

On January 28, 2000, Counsel for the Grievor wrote a letter to this Board seeking further clarification as to the payment of certain sick benefits to the Grievor during the period to which the monetary settlement applied. His position was that the sum of $3,369.00 in sick benefit payments made to the Grievor during the sick benefit period should not be included in the gross amount payable, but should represent a separate amount paid to the Grievor.

The response of Counsel for the Employer to the letter was that the decision of the Board is clear and not ambiguous with respect to the payment amount, and needs no further clarification. Counsel for the Employer also submitted that the Board is ‘Functus Officio’, having made a final disposition of the matters placed before it.

This Board has carefully reviewed the submissions and arguments of the parties with respect to its decision of January 17, 2000. In that decision the Board remained seised should the parties have any difficulty with the performance of the terms of settlement and the Board’s subsequent decision.

The issue raised by Counsel for the Grievor concerns the payment of $3,369.00 by the Employer during the period March 1, 1999 to June 23, 1999, and submits that the amount should be in addition to the settlement amount, rather than a part of the sick benefit payment calculation. In its decision of January 17, 2000, the Board concluded:

“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 the Clauses 3 and 5 should be interpreted to include the $3,369.00 as a prepayment of part of the sick pay benefits receivable by the Grievor under the terms of the Minutes of Settlement.”

To further clarify the Board’s decision of January 17, 2000, the sum of $3,369.00, being a payment to the Grievor during the period March 1, 1999 - June 23, 1999, represents a part payment to the Grievor of the total sum payable by the Employer. Had the settlement agreement provided for a sick benefit period that excluded the first weeks of March to which the 3,369.00 applied, the amount would be excluded, but to include the sick benefit period for which payment was made, the $3,369.00 must be included in the calculation of the amount payable by the Employer. The $3,369.00 accordingly represents a part of the settlement amount set out in the agreement.

Dated at Toronto, this 29^th^ day of March, 2000