PSGB#2016-0599

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

O’Neil

Complainant

• and -

The Crown in Right of Ontario (Ministry of Government and Consumer Services)

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

Dean O’Neil

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING TELECONFERENCE

May 17 and December 6, 2018 May 19, 2017 and December 7, 2018

Decision

1This decision deals with the merits of the complaint of Dean O’Neil relating to his claim to pay improvements in respect of the period of salary continuance prior to his retirement. The employer takes the position that he has no entitlement according to the terms of the applicable policies, and because of a release he signed prior to payment of the monies owed him on his departure from the Ontario Public Service.

2Preliminary objections to the Board’s jurisdiction on the basis that Mr. O’Neil’s complaint was related to pay for performance, as well as a motion that the complaint failed to make out a prima facie case, were rejected in an interim decision dated April 11, 2017, now reported as O’Neil v Ontario (Government and Consumer Services), 2017 CanLII 30293 (ON PSGB). The employer made no other objections to the Board’s jurisdiction.

Factual Overview

3The facts necessary to this decision are mostly uncontested, and the decision largely turns on the interpretation of the applicable pay policies and written documents, as will be discussed below.

4As noted in the preliminary decision, Mr. O’Neil was an Employment Mobility Coordinator with Human Resources Ontario who was given notice in September 2014, that his position was being declared surplus, as a result of a reorganization affecting his work unit. When he received his formal Notice of Lay-off in January 2015, the options available to him included remaining employed and available for a targeted direct assignment to managerial vacancies with priority consideration over applicants not in receipt of a notice of lay-off, as well as two exit options, subject to management approval, one with immediate payment of a lump sum, and the other with salary and benefit continuance as pay in lieu of six months working notice. Mr. O’Neil signed a form choosing the second exit option, and was on salary continuance from January 22, 2015, his last day in the workplace, until the date when he could access an unreduced pension, April 30, 2015.

5Later in 2015, the employer announced pay provisions for managers which had retroactive application to the period between Mr. O’Neil’s last day of work and his retirement in late 2015. They provided, subject to certain conditions, for the continuance of lump sum payments to managers who had received them in 2011, and in addition provided a salary adjustment effective April 1, 2015. The latter was the first of its kind since the introduction of fiscal restraint measures in 2012.

6The payments in questions are detailed in policy documents issued late in 2015. The context for these payments, in general, is fiscal restraint which resulted in a freeze on managerial salaries from 2012 through 2015. For several years prior to 2012, managerial increases had been tied to individual performance, with higher percentage increases if performance exceeded expectations. The pay for performance percentage rates were typically announced near the end of the calendar year with retroactive application to the start of the fiscal year in the preceding April. The variable percentage amounts were applied to move the individual employee on the relevant salary grid up to the maximum. Employees who had reached the maximum of their pay range received any excess over the maximum as a lump sum. Mr. O’Neil was among those employees, who received annual remuneration which consisted of regular salary payments and a lump sum.

7When the managerial salary freeze was implemented, pay for performance was set at zero, preventing movement on the managerial salary grid. Managers who had received lump sums as part of their performance awards in 2011, because they were at the maximum of their pay grids, received payments in 2012 that were designed to prevent a decrease in annual compensation due to the lack of the lump sum portion of their compensation.

8When Mr. O’Neil heard about the new pay provisions announced in 2015, he understood them to be available to those still on payroll at the end of the fiscal year, March 31, 2015, as he was. He made inquiries with human resources staff about what was coming to him, and was initially provided with figures consistent with his understanding that he would be eligible for the new compensation measures. Subsequently, the employer informed him that he was not eligible because of exceptions in the relevant pay policies relating to people on leave of absence pending termination or retirement, leading to this complaint.

9The complainant gave evidence in support of his claim, as did Mike Bailey, Team Lead, in the Employment Mobility Unit where Mr. O’Neil worked; Sharon Vickers, who was in an acting assignment as an Employment Mobility Coordinator in the same unit, and Rhonda McWade who also provided consultation advice to employees whose jobs were declared surplus. Witnesses for the employer were Caroline Savarie, Director, HR (Human Resources) Advisory and Recruitment Services, and Laila Krieg, Manager of the transformation project affecting Mr. O’Neil’s work unit. Although there were differences in recollection on some points, I find that all the witnesses were credible and straightforward in recounting the facts within their knowledge.

10Further factual details relevant to each of the issues in dispute will be dealt with below.

Issues in dispute

11The issues arising in respect of the above-noted facts are as follows, which will be dealt with in turn:

a) Is the complainant eligible for additional compensation under the terms of pay policies announced in late 2015? The answer to this question hinges on two included questions, arising from disputed elements of the policies in question, i.e.

i) Was Mr. O’Neil still in a non-bargaining unit position on March 31, 2015?, and;

ii) Was he on a leave of absence pending termination at the time?

b) If the complainant is not eligible for additional compensation according to the relevant policy provisions, is he nonetheless entitled to compensation because he was not given sufficient information to consent to the retirement option he indicated as his choice prior to his exit from the workplace?

c) Does the Exit Agreement and release signed by the complainant prevent him from succeeding in this complaint in any event?

12In coming to the decision and the reasons which follow, I have considered all of the extensive written and oral submissions made at various stages of this complaint, even if not specifically referenced, in the interests of not unduly lengthening this decision.

a. Entitlement Under the Pay Policies?

13The first pay policy in issue, Directive #33-54 from Management Board of Cabinet dated November 17, 2015, provided, similar to the previous few years, that pay for performance awards were set at 0%, but where that would result in a reduction of earnings, a non-pensionable lump sum would be available in the same amount as the lump sum paid in 2011. Important to the issue in dispute, the policy document made eligibility "subject to the rules in any written compensation policies issued by the Public Service Commission."

14Further rules appear in a subsequent document entitled "Compensation Policy and Eligibility Procedures 2015", effective November 20, 2015, in which criteria for eligibility were elaborated. This document states that earnings of managerial employees "who were eligible for performance pay, are to remain at 2011-12 levels subject to the eligibility criteria and the exceptions set out in this policy." Mr. O’Neil submits that his earnings were not maintained at 2011-12 levels, because he was not granted the lump sum intended to prevent a reduction in earnings from the 2011 compensation levels.

15The eligibility criteria mentioned, in tandem with the statement that earnings were to remain at 2011-12 levels, provide two initial eligibility requirements in order to receive a lump sum in 2015. The first is that the employee had received a lump sum in respect of a non-bargaining unit position in respect of the 2010-11 performance cycle. There is no dispute that Mr. O'Neil met that requirement. Secondly, though, the employee had to continue to be in a non-bargaining position on the last day of the 2014-15 fiscal year, i.e. March 31, 2015. The wording is as follows:

5. Mandatory Requirements

5.1 Initial Eligibility

Non-bargaining employees are eligible for a payment when the following initial eligibility criteria are met:

1. The non-bargaining employee received a variable re-earnable incentive payment in respect of the 2010-11 performance cycle in a non-bargaining position; and

2. The non-bargaining employee continues to be in a non-bargaining position on the last working day of the 2014-15 fiscal year.

Payments to employees appointed to positions or acting in positions as noted in the Application and Scope section are subject to the specific eligibility criteria and the exceptions provision set out in this policy.

i. Was the complainant in a non-bargaining unit position on March 31, 2015?

16The employer notes that Mr. O'Neil's position was abolished as of January 23, 2015, as indicated in the personnel documents in evidence, while Mr. O’Neil emphasizes that he was still an employee as of March 31, 2015. The employer argued that it was not necessary to resolve the issue of whether Mr. O’Neil was in a non-bargaining position on March 31, 2015, because of another provision of the policy relating to those on salary continuance, which is dealt with below. I am of the view that it is important to address this point, given my view that it is integral to the interpretation of the policy documents as a whole, and thus to a determination of the compensation the employer was offering.

17The interpretation of the policy documents must be rooted in the basic law of contract, which requires an offer from one party and its acceptance by the other, in order to make a legally binding contract. If something was not offered in the first place, it is not capable of being accepted or forming part of the terms and conditions of employment, unless it is implied by statute or other law. Mr. O’Neil made arguments based on statute, which will be dealt with below, but the analysis has to start with what was offered by the employer. This is particularly crucial in the situation for employees such as Mr. O’Neil whose terms and conditions of employment are largely determined by policies unilaterally promulgated by the employer, rather than being individually negotiated.

18Mr. O’Neil argues that there is no such thing as not being in a position in the Ontario Public Service [OPS], that even if a position is no longer funded or has been declared surplus, an employee is treated as having a home position. He maintains that he was treated as if he were in a non-bargaining position from January to the end of April 2015, and that the expression in the policy “in a non-bargaining position” should be interpreted to distinguish between bargaining unit and non-bargaining unit positions, because that will determine the source of individual entitlements. For a non-bargaining unit position in the Management Compensation plan, there is a specific Workforce Adjustment Policy, which governs entitlements on lay-off. If it were a bargaining unit position, the entitlements would come from different sources, including the applicable collective agreement.

19Mr. O’Neil argues that his status before and after his last day of work remained the same, noting that the employer’s documents show that the computerized records from the WIN [Workplace Information Network] system indicate his position number and title as the same as before he left the workplace. He refers to advice that he and his colleagues gave over the years that indicate that status remains the same after Notice of Lay-off. It is clear from all the evidence and documentation that Mr. O’Neil was considered to have the status of an employee, albeit one not required to attend work between his last day in the workplace and his retirement date. However, it is equally clear that there were differences in his terms and conditions of employment before and after his last day of work.

20Further, Mr. O’Neil sees the idea that he was no longer in a non-bargaining position on March 31, 2015 as the employer attempting to strip him of his position during his notice period. He argues that this would be a violation of the Employment Standards Act [ESA]. This is apparently a reference to s. 60 of the ESA which is dealt with below.

21The employer prefers a broader interpretation of the phrase “in a non-bargaining position”. Rather than taking all its meaning as a contrast to an individual in a bargaining unit, the employer urges an interpretation that means that the individual is in a position in the workplace on the last day of the fiscal year. The employer’s view is that this interpretation is more consistent with the intent of the provisions, i.e. providing payments to people whose pay package would otherwise be reduced, in order to favour retention and morale which would be negatively impacted if an individual found his or her take-home pay reduced. Noting that the setting of pay for performance or payments of the type in question is always applied retrospectively to the end of the earlier fiscal year, counsel argues that there would be no reason to afford such payments to individuals that had already left the public service, for whom there would be no longer any retention or workplace morale purpose.

22My task is to choose the interpretation that is more consistent with the applicable pay policies and the objective facts in accordance with the accepted rules of contract interpretation. These include giving the words in issue their ordinary meaning in context, unless there is evidence that the words had a special meaning shared between the parties that gives better effect to the intention of the parties, or the ordinary meaning would have absurd or illegal results. Mr. O’Neil’s evidence that, from his long experience as a Human Resources professional, there was no such thing as not being “in a position” in the OPS suggests that there was an accepted meaning to the effect that individuals who were still considered employees were “in a position” even if they were on salary continuance. Mr. O’Neil considered employees in a similar situation to his own who had received a Notice of Layoff and were in receipt of salary continuance to be in their home positions until termination. In this light, in his view, he should be considered to be in his home position until his retirement on April 30, 2015, and to meet the initial eligibility requirement above.

23The evidence supporting the contrary view, that he was no longer “in a position” after his last day of work, includes the fact that it is clear that the position of Employment Mobility Coordinator that he had previously occupied was abolished in January 2015. Neither he nor anyone else was in that position in the sense of doing its work on March 31, 2015. The WEAR [WIN Employee Action Request] form used to communicate the change that was effective on January 23, 2015 notes the type of transaction as “Termination - Reason: Elimination of Position”. The comments section recorded that he would be receiving pay in lieu until April 30, 2015 and then retire. This triggered appropriate payroll coding, and resulted in a WIN form dated January 29, 2015 which records that Mr. O’Neil, although on active payroll, was surplused by reason of the abolition of his position. Although the language used on computer forms is not conclusive in isolation, these forms are consistent with the other evidence that, after his last day of work, Mr. O’Neil’s position was abolished, and he was not offered another position in which to work, or otherwise be “in”. Rather, he had chosen to ask for the right to exit the workplace with salary continuance, and the employer had approved that. Thus, as an objective factual matter, in the specific circumstances before me, I find that Mr. O’Neil did not continue to be in a non-bargaining unit position at the end of the fiscal year 2014-15.

24The fact that the computer records continue to record his position number and work unit does not change the fact that neither existed in the workplace after January 2015. This was not new information in January 2015. The evidence is clear that throughout the spring and fall of 2014, it had become known to Mr. O’Neil and his colleagues in the Employment Mobility Unit that the unit was to be abolished, and the work redistributed elsewhere as a result of a major reorganization. Discussions with his manager started in the spring, and became more specific in the fall, as the employer’s plans for the transition neared completion. He was advised in writing on September 29, 2014 by the Director, Caroline Savarie, that his position was to be eliminated in January 2015.

25I also find merit in the argument advanced by employer counsel that the policy documents read as a whole do not evidence an intention to provide the payments in issue to people who had exited the workplace pending retirement or other termination, which is further demonstrated in the wording of the provisions of the policies in respect of leaves of absence dealt with below. This also contributes to my finding that the phrase “in a non-bargaining unit position” should be interpreted in the context of these specific policy provisions to both distinguish managers’ entitlement from those of bargaining unit employees, as well as to require that a person be objectively “in” a position. I am persuaded that there was no intention on the employer’s part to offer the payments in issue to someone who had exited the workplace on salary continuance pending retirement. Although there are fact situations where someone not working in a position should be considered to nonetheless be “in” it for specific purposes, some of which are articulated in the policies in question, I am not persuaded that this is one of them.

26Mr. O’Neil is strongly of the view that the promise of salary and benefit continuance (except short term and long term sickness protection) included any increases in compensation applicable to the period of salary continuance. I accept that is a sincerely held belief, but it is not determinative, as my task is to interpret the language used in the relevant documents in light of all the circumstances, in its ordinary sense and from an objective point of view. These include the workforce adjustment policy section of the Public Service Commission Directives, entitled “Employment Policy”, and various information documents used by, and communicated to, Mr. O’Neil, prior to his receipt of Notice of Lay-off.

27The subject of salary continuance is dealt with in other documents filed by Mr. O’Neil, including a set of Power Point slides, part of information given to management employees whose positions were to be surplused. Slide 8, the purpose of which is described as highlighting “the other eligible payouts the employee will receive” under salary continuance, mentions salary and benefit continuance. The specific wording which describes the salary continuance for the six month notice period is: “The employee’s bi-weekly pay with benefits continue (except for Short Term Sickness and LTIP), beginning the last day worked for the duration of the notice period.” To my mind, that is a promise that what an employee was receiving on the last day worked will be continued, rather than a promise that any then unknown retroactive payments announced after retirement would be payable. I note that this is not a situation of a previously announced or vested right to a compensation increase during the period of notice prior to lay-off. Further, the remaining entitlements enumerated to be received at the end of the six months’ notice period are termination pay plus enhanced severance and eligible unused credits. There is nothing in this document, or any of the others, that promises retroactive pay increases.

28The material goes on to describe the calculation of the severance pay, i.e. it “will be calculated based on the employee’s salary on the date they cease to be an employee”. That date is April 30, 2015, not some date later in the year when the employer issued the retroactive compensation directives. It also states: “The employee forfeits all salary and benefit entitlements, except legislated entitlements, that would have accrued from the last day worked to the lay-off date.” Neither party commented on that phrase, or directed any evidence towards it, but it appears to support the idea that the employer was not offering an employee on salary continuance any other salary and benefit entitlements arising from the period after the last day worked. It demonstrates another difference between being on salary continuance and being at work, which includes forfeiting salary and benefit entitlements that would have accrued during the notice period after the last day of work. It is my view that the retroactive application of the compensation outlined in the compensation directives issued in the fall of 2015 qualify as such forfeited entitlements as they could only have accrued during the notice period.

29The information on the subject of options after receipt of Notice of Layoff, including exit with salary continuance, all provides the opportunity to ask questions, an option that Mr. O’Neil was familiar with in any event, as he had been on the receiving end of such questions for many years. Although Mr. O’Neil emphasizes that the information document discussed above was referenced in the letter he received prior to his making his elections, but it was not actually included, I am satisfied that it would have been given to him if he had asked prior to signing his election form. Given Mr. O’Neil’s lengthy professional experience with employees in transition, I am persuaded that, at the time, he did not feel he needed more information than he had to choose the option that would get him to his retirement date of April 30, 2015, and I am not persuaded that receipt of the document would have likely changed his choices.

ii Was the complainant on a leave of absence during his period of salary continuance?

30The employer argues that Mr. O’Neil was not eligible for the payments he claims for the additional reason that, as of March 31, 2015, the date specified in the policy for the determination of entitlement, he was on leave of absence with salary continuance. The complainant maintains that he was not on a leave of absence, never having asked for one, or been put on one by the employer, and because HR professionals had a longstanding understanding of the term which did not include a period of salary continuance.

31The debate over whether or not Mr. O’Neil was on a leave of absence arises from the specific eligibility criteria in respect of employees who were on leave of absence in 2014-15, and who terminated their employment in that fiscal year. For the entitlement claimed from Compensation Directive 33-54, the following excerpts are key to this dispute:

5.2 Specific Eligibility Criteria

Determinations regarding the provision of a payment to employees shall be made in accordance with the specific criteria set out below:

1. Leaves of Absence

(a) Employees who meet the initial eligibility criteria are eligible for a payment if they are on any of the following leaves in 2015-15:

i. self-funded leave

ii. discretionary leaves (not more than six months and greater than six months)

iii. secondment external to the OPS/leave of absence for outside employment

iv. leave of absence, with or without pay, for:

• staff development leaves under the Learning and Development Policy ("not more than 6 weeks" and "more than 6 weeks")

• extended parental leave (additional "up to 6 weeks leave without pay")

(b) Short Term Sickness Plan (STSP), Long Term lncome Protection Plan (LTIP) Leave, or Workplace Safety and lnsurance Act, 1997 (WSl) Leaves

Non-bargaining employees who were at the maximum of their salary range on April 1, ,2011, who met the initial eligibility criteria and who were on leaves of absence under the: Short Term Sickness Plan (STSP); Long Term lncome Protection Plan (LTIP); or Workplace Safety and lnsurance Act, 7997 during the 2010-11 fiscal year, may not have been eligible for a full variable re-earnable incentive payment in 2011.

lf such employees have returned to work, on or after April 1,2011, and are at the maximum of their salary ranges, they are eligible for a payment. The amount of the payment would be the amount the employee would have received if the employee was not on the leave of absence. Where no performance rating was assigned, the amount of the payment would be equivalent to that of the

application of a "fully effective" performance rating in the 2010-11 performance cycle.

(c) Employment standards Act, 2000: Leaves of absence in 2010-1 1

Employees who were on leaves of absence under the Employment standards Act, 2000, (pregnancy and parental, family medical and emergency) during the 2010-11 fiscal year, may not have been eligible for a full variable re-earnable incentive Payment in 2011.

lf such employees were at the maximum of their salary ranges as of April 1, 2011, they are eligible for a payment. The amount of the payment would be the amount the employee would have received if the employee was not on the leave of absence. where no performance rating was assigned, the amount of the payment would be equivalent to that of the application of a "fully effective"

performance rating in the 2010-11 performance cycle.

(d) Employment standards Act, 2000: Leaves of absence on or after April 1, 2011.

lf employees take a leave of absence under the Employment Standards Act, 2000 (pregnancy and parental, family medical and emergency) on or after April 1, 2011, and such employees were at the maximum of their salary ranges as of April 1 ,2011, they are eligible for the payment.

2. Termination of Employment.

(a) A non-bargaining employee who meets the initial eligibility criteria and who terminates his/her employment due to the reasons below (on or after the last working day of the 2014/15 fiscal year, is eligible for the payment.

i. Death

ii. Resignation

iii. Retirement

For clarity, employees who have terminated their employment before the last working day of the 2014-15 fiscal year, but have elected to take a leave of absence with pay in lieu of their termination pay, in accordance with the Management Board of Cabinet Compensation Directive, section 68, or have extended their service through the conversion of time banking credits, are not eligible for a payment.

For further clarity, employees who have terminated their employment before the last working day of the 2014-15 fiscal year, but have elected to receive their written notice of lay off, issued in accordance with the Employment Policy, as salary continuance, are not eligible for a payment. Similarly, Senior Management Group employees who have been issued a surplus notice, and have elected immediate exit under the Executive Transition Support Program are not eligible payment.

32Mr. O'Neil takes the position that the wording above does not disqualify him, as he was not terminated until his retirement date, which was April 30, 2015, as well as that he was not on a leave of absence. As he notes, the pension documents, termination and severance pay calculations were all based on that date as the termination date. His benefits were transferred as of that date, and he was offered to return as a fixed term employee as of May 1, 2015. I accept the very clear evidence that Mr. O’Neil’s employment was not terminated until April 30, 2015, his retirement date.

33It is also clear that he exited the workplace on January 22, 2015, and did not report to work after that date. Mr. O’Neil expressed his dismay at the lack of clarity and consistency in the policies, documents and employer arguments, in terms of the use of the distinct terms of “exit” and “termination” seemingly interchangeably. He notes that the term “exit” does not appear as a disqualifier in the policy documents. I agree that the use of the word “termination” in various somewhat inconsistent senses in the computer documents, pay policies and longer-standing Human Resources policies and practices served to complicate this matter in an unfortunate way. I have concluded that this dispute could likely have been prevented if the language in the Compensation Directives had tracked the language in the documents given to employees prior to making their elections after Notice of Lay-off.

34Further, Mr. O’Neil states he did not elect a leave of absence. The question of a leave of absence is also relevant to the second entitlement sought by Mr. O’Neil, i.e. an increase to his base salary effective April 1, 2015. The Management Board of Cabinet directive relevant to this claim is entitled “Directive for Determination of Remuneration – 33-55”. In summary, it provides for two alternative types of increase to base salary for managers. For those in receipt of a lump sum pursuant to directive 33-54, discussed above, the adjustment was in the same amount as that lump sum. As well, such employees were entitled to a further 3% adjustment to their individual base salary in effect on March 31, 2015, paid as a lump sum to the extent it was over the salary range maximum for the employee’s position in effect on April 1, 2015. Such adjustment is specifically said not to be included in any pensionable earnings calculations.

35Directive 33-55’s alternative adjustment was for those who did not receive a lump sum under Directive 33-54. This provided for a 5% adjustment to base salary in effect on March 31, 2015. Again, to the extent it was over the salary range maximum for the employee’s position in effect on April 1, 2015, it was payable as a lump sum, not to be included in any pensionable earnings calculations. Important to this case, there is a paragraph entitled “Exception”, which provides that neither of those alternative payments will be made for service after April 1, 2015 where “the public servant is on a leave of absence pending termination of employment”. Although it performs a similar function to the wording referred to above in Direction 33-54, the exception provision in Directive 33-55 is worded differently, i.e.:

No payment or adjustment shall be made pursuant to paragraphs 1) and 2) to any public servant for service after April 1, 2015, where,

a. The public servant ceased employment with the Crown in the Right of Ontario on or before April 1, 2015; or,

b. The public servant, on April 1, 2015, is on a leave of absence pending termination of employment with the Crown in the Right of Ontario.

36Mr. O’Neil submits that being on a leave of absence requires either that the employee apply to be on leave, or the employer places the employee on leave, and that in either case, the employer must advise the employee that he or she will be placed on a leave. In this case, he was not so advised until he started inquiring about the payments that are the subject of this grievance, long after he had made his decisions about his exit options. He notes that the period between the last day of work and retirement date was never called a leave of absence during his time as an HR professional, and the personnel forms he and his supervisor signed in respect of his departure do not call it a Leave of Absence either.

37Mr. O’Neil’s witnesses were also of the view that periods of salary continuance were not considered leaves of absence. For instance, Mr. Bailey, the Team Lead for the OPS experts in this field of employment and mobility, providing notice and surplusing, shared Mr. O’Neil’s view that the term Leave of Absence was not used in their unit for that situation, because it would open up a whole other connotation of how the employee would be treated. Mr. O’Neil maintains that the employer was avoiding calling it a leave of absence, and instead used the specific wording “elimination of position” on the personnel forms documenting his exit from the workplace. Mr. O’Neil maintains that it was only called a leave of absence once the employer took the position of denying him the payments in question.

38Mr. O’Neil also notes that the options for retirement after a notice of lay-off included one which was applicable to individuals whose retirement date did not fall within the six months’ notice period. Employees in that situation could convert their severance pay into a paid leave of absence for the purpose of reaching an unreduced pension date that occurred beyond the expiration of the six months’ notice period. Otherwise, leaves of absence after receipt of lay-off create a hiatus in the notice period. Mr. O’Neil argues that, if he is to be considered to have been on a leave of absence, it should have created such a hiatus, which would give him other entitlements, which he should be awarded. He argues that the exception in the compensation directive 33-55, for those on leave of absence pending termination should be interpreted as applying only to those in the situation of converting their termination pay to a paid leave which would take them to their unreduced pension date.

39The employer submitted “screen shots” of computerized records created January 29, shortly after Mr. O’Neil’s last day of work, indicating that Mr. O’Neil was on leave of absence related to pay in lieu of notice. I note that there was no suggestion that Mr. O’Neil had seen these records at the time, or had any hand in creating them. As well, relevant to what the employer was offering, a Question and Answer document, revised January 26, 2016, states on pg. 5:

Employees who are on a paid or unpaid leave of absence on April 1, 2015, are eligible to receive the 3% or 5% salary progression adjustment.

For clarity, employees on a leave of absence pending termination are not eligible for a salary progression adjustment.

40Regarding the issue of whether or not Mr. O’Neil was on leave of absence after his last day of work, employer counsel argues that there is no way for Mr. O’Neil to escape the effect of the specific eligibility criteria set out above. It is the employer’s position that a fair reading of these provision indicate that they apply to Mr. O’Neil’s situation. To accept that the word “terminated” cannot have meaning on any date other than the date he retired, in the employer’s view, would entirely negate the effect of the “clarity” paragraphs set out above. In context, the reference to those who have “elected to receive” salary continuance can only refer to someone who has chosen the exit option, and continues on payroll. If an individual were no longer on payroll, or the pay in lieu had been exhausted, there would be no revenue stream, and consequently no reasonable basis to apply the provision, in the employer’s view. The employer invites the finding that the paragraph does not make sense unless it applies to someone like Mr. O’Neil who has exited and is on salary continuance. Thus, counsel argues that it is appropriate to apply the term “terminated” in the above policy in the circumstance where an employee has exited the workplace, and not just to the date when his employment ceases.

41Counsel refers to other places in the evidence where the word termination is used to refer to the date Mr. O’Neil left the workplace, including the WEAR form referred to elsewhere in this decision.

42Mr. O’Neil’s evidence was that the termination choice on the computer WEAR form referred to above was part of the generic computer platform, which was particularized into a drop-down menu for use by Ontario Shared Services for its internal coding purposes and that it did not change his actual date of termination.

43As to the second compensation directive, #33-55, counsel asserts that it may be more of an interpretative challenge as it does not tie back to the compensation policy and eligibility criteria set out above. For interpretation purposes, it is instead necessary to look at the way Directive 33-55 itself is constructed. The interpretation of the exception for those on leave of absence pending termination is also to be interpreted in a way that is consistent with the overall intent and purpose of the policy documents.

44Counsel argues that the task is to determine what the phrase “leave of absence pending termination” means in context, as the term can arise in a variety of different situations. In context, the bare words are consistent with leave in the sense of having been given permission to not be there, to be absent, to not report for work and still receive salary continuance. There are a variety of possible kinds of leave, such as sick leave, a secondment outside of the OPS, or to deal with a family issue. The employer’s position is that the interpretation of the kind of leave specified in the compensation directive, “leave of absence pending termination”, which most closely fits with the purpose and intent of the compensation directive 33-55, is to apply it to include individuals who have had a notice of layoff delivered, and have elected an exit option which includes salary continuance.

45Counsel articulates the purpose of the compensation directive as to provide for a relatively minor adjustment to base salaries in the face of what had by then been a four-year pay freeze. Those who had received the lump-sum payments referred to above, to prevent actual reduction in take-home pay in the years when pay for performance awards were set at zero, received a smaller adjustment than those who had not received those payments, mostly employees who had not reached the maximum of their salary range. If Mr. O’Neil were eligible, it would have been an improvement in his pay at the beginning of the fiscal year until he retired a month later.

46In discerning the purpose of these provisions, counsel submits that the appropriate question is: would there be any reason to apply the lump sum to someone who has left the workplace? As with the other compensation directive, counsel argues that the purpose is to address retention and morale in the work place. Consequently, it needs to apply to people still in the workplace, in the employer’s view, and it would be gratuitous and inconsistent with the purpose of the compensation directives to apply it to those not in the workplace because they are leaving the OPS.

47Counsel for the employer acknowledges that the term “leave of absence” is used in different ways in a number of places in the documents in evidence. Referring to the WIN records for the period after Mr. O’Neil’s last day at work, effective January 23, 2015, Mr. O’Neil is recorded as having payroll status of “Leave With Pay”, and then on May 1, 2015, he is recorded as retired, with an inactive HR status. Counsel submits that these records are consistent with the interpretation that the term on “leave of absence” pending termination applies to a person who has exited the workplace and is on salary continuance.

48From all his arguments and submissions, it is clear that Mr. O’Neil sees the purpose of the retroactive compensation policies to be equally to reward dedicated past service up to his retirement, not just to serve as an incentive to those remaining in the workplace.

49Mr. O’Neil and one of his witnesses testified that employees on salary continuance had received retroactive pay increases throughout the period he worked in Human Resources. However, there were no specific cases cited, nor any reference to a policy or factual situation sufficiently similar to the one in issue here to be helpful in interpreting the very specific policy provisions in issue here.

50As well, the employer referred to provisions in earlier compensation policies which specifically exempted time on salary continuance from pay for performance or other salary provisions or treated them differently. For instance, the “Management Compensation Pay for Performance Operating Procedures” dated April 2008, which would have been in effect for a significant amount of the time Mr. O’Neil was in the Employment Mobility Unit, provided as follows:

The time during which an employee is on salary continuance after exit from the workplace is not time at work and is not eligible for performance award purposes. This is different from the six-month notice period provided for in the event of a surplus whereby an employee has not exited, is considered working (regardless of their work location) and the time is eligible for performance award purposes.

Periods where employees remain on payroll by converting termination payments to leave with pay are considered time not worked during the performance cycle (payment is prorated accordingly.)

51The above provisions obviously are not identical to the provisions in issue here, but they are an indication that the terms and conditions of employment for those on salary continuance were not identical to those actively at work, or hoping to return to active work, in the past. I accept Mr. O’Neil’s evidence, supported by the documents in evidence, that the only exceptions to pay and benefit continuance that were mentioned to him were short term and long-term disability benefits, and that this had been the practice for a long time in his and others’ counselling of employees in transition. It may be that the only exception to benefits entitlement was sick leave, but I am persuaded that there was not always identity between employees in the workplace and those not at work on the subject of pay for performance or pay arrangements when pay for performance was set at 0%. And although it is true that there is nowhere in the evidence that indicates that Mr. O’Neil would not receive any retroactive pay improvements applicable to his period of salary continuance, I am persuaded that there is also no evidence of any pay policy that provides that he would receive them.

52I have carefully considered the disputed wording in light of the parties’ arguments and have come to the conclusion that the employer’s proposed interpretation is preferable when considering the compensation directives as a whole. Although I share the complainant’s perplexity at the shifting use of terms, even between the two compensation directives, I am persuaded that there was no intention to offer employees in Mr. O’Neil’s situation the benefit of Pay Directives 33-54 or 33-55. Therefore, I find that the pay directives in question were not a term or condition of his employment. Thus, they cannot be enforced to his benefit.

53From a linguistic point of view, under Directive 33-54, the idea that Mr. O’Neil should be considered to be on a leave of absence is supported by the plain meaning of the words, in that he was absent from the workplace with leave of the employer. As well, internal to Compensation Directive 33-54, this interpretation is supported both by contrast to the types of Leaves of Absence that are not excluded, and those that are excluded in the “clarity” paragraph.

54The types of leaves of absence enumerated in Section 5.2 (1) of the specific eligibility criteria, are leaves which typically involve an anticipated return to the workplace, or at least for which a specific termination date has not been set. For instance, in contrast to Mr. O’Neil’s situation, for STSP and LTIP, the provisions specifically reference return to work.

55To the extent there is any ambiguity in terms such as “discretionary leaves” in Section 5.2 (1), set out above, which could, in its plain meaning, apply to Mr. O’Neil’s receipt of the employer’s discretionary permission to be absent from the workplace, the clarity paragraph specifically mentions salary continuance as an exception. Although I find the use of the term “terminated their employment” in conjunction with someone still on salary continuance awkward at best, I am required to give the words meaning in context. The references to salary continuance in the evidence and policy documents all refer to employees in Mr. O’Neil’s situation. His proposal to interpret it only to apply to people who need to convert their termination pay into a leave with pay after the expiry of the notice period does not give meaning to the separate clarity paragraph in section 2 (a) above. The first clarity paragraph is more amenable to the interpretation offered by Mr. O’Neil, as it specifically references termination pay, which bears a separate meaning than salary continuance in all the documents in evidence. It is clear that after Mr. O’Neil’s period of salary continuance, he was still eligible for termination pay, as well as enhanced severance and that he did receive both.

56In all these circumstances I find that the intention of the policy documents was to consider a person in Mr. O’Neil’s situation on a leave of absence pending termination. This is true of Directive 33-55 as well. This language of its “exception” provision does not have the awkward use of the word termination to refer to someone whose employment has not yet been terminated, so it is clearer language. Its reference to leave of absence should be applied to Mr. O’Neil for the reasons above, and to provide a consistent interpretation of the term “leave of absence” in the companion compensation directives issued in the fall of 2015.

57Mr. O’Neil notes that although the employer has spoken extensively about what is written in the policies, they did not bring in anyone such as a subject matter expert who could speak with authority about the writing and implementation of the policy, or explain the ambiguous, inconsistent language on subjects such as leaves of absence after or pending termination. Nonetheless, the standard approach to interpretation of contractual language relies most heavily on the words standing on their own, with intention to be gleaned from the words themselves to the extent that it is possible to do so. I am satisfied that the meaning of the policy documents, read together, is sufficiently clear without evidence from those who drafted them.

58As to Mr. O’Neil’s request that any leave should have been put on hiatus, I accept the employer’s point that it has no application to his circumstances. Ms. Krieg’s evidence was that the provisions about hiatus for leaves of absence did not apply to someone who has elected to exit. Rather, it applies to someone working through notice, hoping to be redeployed. The effect is to put a hold on the “running of the clock” before lay-off. By contrast, there is no longer a clock running if the employee has elected exit, only pay in lieu. Further, many of the references to them in the policy documents contemplate a return to work, which was not the case at the point of Mr. O’Neil’s exit on salary continuance.

b) Is Mr. O’Neil entitled to compensation because he was not given sufficient information to consent to the retirement option he indicated as his choice in late 2014?

59Regardless of the provisions of the pay policies themselves, Mr. O’Neil claims compensation based on the premise that he was not given sufficient information to make an informed choice prior to his election to exit the workplace in January 2015. He maintains that he might have chosen to stay in the workplace until retirement if he had known he might be forfeiting retroactive pay increases to which he might otherwise be entitled. It is common ground the employer was committed to finding new positions for those employees impacted by the abolition of the Workplace Mobility Unit who did not wish to receive a Notice of Lay-off, so that if he had asked to stay in the workplace, it is very possible he would have been offered a position that would have meant he was still in the workplace on March 31, 2015, and thus potentially eligible under the policies.

60As well, Mr. O’Neil argues that the employer was responsible to make clear that there might be negative impacts on his pay if he asked for salary continuance. As well, he says he was pressured into choosing to exit because of an email sent by Ms. Savarie on October 2, 2014, which announced to his colleagues that he was retiring in January 2015, even before he had officially asked for that, and when he was not eligible to retire until April 30, 2015.

61Mr. O’Neil acknowledges he had conversations with his manager in which he indicated that he was interested in retiring in April, but retiring in January was never part of this, since he was not eligible for an unreduced pension in January. Thus, he was shocked to read the October 2 announcement from Ms. Savarie to the work unit which indicated that he was retiring in January, and felt as if he could no longer make any other choice. Referring to Ms. Savarie’s evidence that she was referring to his exit from the workplace in January, rather than any reference to what entitlements he would have after that day, Mr. O’Neil he said he was appalled at the nonchalant attitude in respect of this announcement from her and his manager. To him, the premature announcement had a huge emotional impact and costly ramifications. He maintains that when the announcement was distributed in October, the employer had obviously made the decision that he would not be required to work after January, but this had not been communicated to him. From his point of view, since it is the employer who determines who would not be in the workplace, they are also unilaterally determining who would not qualify for the pay awards announced later in the year, so that not having him in the workplace becomes self-serving.

62Although Ms. Krieg testified that she had communicated to Mr. O’Neil, well before January 2015, that management would approve a request for exit in January, Mr. O’Neil did not agree that had happened. He referred to other indicators that he did not know in advance that the employer had decided by October that he would not be required in the workplace during his notice period, including that he requested vacation for the spring of 2015. Mr. O’Neil had planned a lengthy vacation in the spring of 2015, and did not know whether the employer would approve salary continuance, or whether he would be required to work until his retirement date. Therefore, in the fall of 2014, he asked for vacation approval, which he was told would be granted, if needed, but that it might not be needed if salary continuance was granted. In any event, I have concluded that nothing turns on the difference in recollection about when the employer first told Mr. O’Neil he would be approved for early exit with salary continuance, as it is very clear that exiting in January with salary continuance was his preference and it was approved before he exited.

63Mr. O’Neil also notes an indicator that he anticipated being eligible for pay for performance or other compensation improvements is that, at his supervisor’s request, he completed his performance plan in January 2015 because he was told he would not be eligible for pay for performance if he did not. Mr. O’Neil relies on this as another indicator that it was accepted that he would be eligible for pay improvements which applied to the period before his retirement.

64Responding to counsel’s argument that previous policies would have disqualified him as well, Mr. O’Neil says that this is another attempt by the employer to have it both ways. He considers the employer to be conveniently saying the disqualification is not new for some arguments, and new for other purposes when they say the employer representatives could not have informed him of what the policy said because no one could know in advance.

65Further, Mr. O’Neil maintains that, if the employer had ever acknowledged verbally or in writing to him that his period of salary continuance would be considered a leave absence, he would have been able to make an informed choice, and that this would have included access to section 10.18 of the mandatory provisions of the workforce adjustment policy, which reads as follows:

10.18 When the employee’s position is declared surplus and the employee is issued a notice of layoff before a non-medical leave-of-absence begins, the employee must choose one of the following actions:

• not take the leave-of-absence

• accept a hiatus in the notice period during the leave-of-absence

[note: all workforce adjustment-related entitlements cease during the hiatus period]

• return early from the leave-of-absence.

When the employee returns from the leave-of-absence the balance of the notice period shall continue.

66Mr. O’Neil argues that the employer cannot have it both ways, considering him on leave of absence for one purpose, but having an eliminated position for another. It is his strongly held view that the employer should be required to make a decision and communicate it. Mr. O’Neil submits that the Board has the right to enforce the wording of the workforce adjustment policy, which he contends was not followed, as the employer did not give him the right to choose one of the three bullet points above. In Mr. O’Neil’s view, his pay would then have been increased between January 23 and April 30, 2015.

67In response to Mr. O’Neil’s arguments on whether he was in a position to make an informed decision or whether the employer was misleading or failed to provide information, counsel argues that the employer representatives provided the information that was available to them at the time.

68Mr. O’Neil also submits he was never informed that not reporting to work between January and the end of April would have such a negative financial impact, as his salary on his last day of work has ongoing impact on his finances, including pension. Mr. O’Neil submits that if the employer knew of this, they had an obligation to tell him, and if they did not know, then the employer should absorb the cost of their mistake. He notes that he had the foresight to say he had expectations before he left, in that he wrote on his “Payment Request Form” before he left the work force that he was asking for “P4P/Increases/etc. unknown amount at this time” to be paid and deferred to the following taxation year.

69Mr. O’Neil makes the point that he was promised salary and benefit continuance, and that the announcements in the end of 2015 referred to salary and benefits for the period he was still an employee. He also emphasizes that he was never told that salary and benefit continuance would exclude salary and benefit improvements and changes. The only exclusions were STSP and LTIP. He sees the retroactive attempt to deprive him of the salary and benefit improvements as the implementation of a retroactive penalty.

70In support of his arguments, Mr. O’Neil referred to the following case law, which he argues supports the idea that he is entitled to any bonus or salary increase payable during the notice period pending termination: Styles v Alberta Investment Management Corporation, 2015 ABQB 621. However, that decision was subsequently overturned by the Alberta Court of Appeal in a decision dated January 4, 2017, and now reported at 2017 ABCA 1. The Court warned against the danger of imposing “legitimate contractual interests” that are contrary to the plain wording of the contract, or that involve the imposition of subjective expectations and interpretations on the contract, as well as affirming that declining to perform contractual covenants and promises that were never given is entirely reasonable.

71The complainant also referred to other court decisions: Lin v. Ontario Teachers' Pension Plan, 2016 ONCA 619, adopting the reasoning of Kiteley J. in Schumacher v. Toronto Dominion Bank (1997), 1997 CanLII 12329 (ON SC), 147 D.L.R (4th) 128 (Ont. S.C.J.), to the effect that a terminated employee’s involuntary inability to comply with a condition of a bonus plan requiring continued employment ought not to be justification in declining the award of the bonus as part of his wrongful dismissal damages; Chen v. Purdue Pharma Inc., 2015 ONSC 1967; and Kielb v National Money Mart Company, 2015 ONSC 3790. I agree with employer counsel that these latter cases are not applicable to the instant complaint which does not involve a wrongful dismissal. Those cases are concerned with the monetary basis on which to calculate damages for wrongful dismissal when notice should have been given, and was not. The same principles do not apply here where there is no claim of unjust dismissal or inadequate notice. They also deal with terms and conditions of employment known at the time of the end of the employment relationship, which is another important distinguishing feature of the facts in those cases.

72Most basically, unlike the fact situations in most of the cases on which he relies, Mr. O’Neil had not been fired at the time he signed the exit agreement. Rather, he agreed to retire rather than risk being unilaterally terminated at the end of the notice period if no position had been found for him.

73I also note that Court findings on the issue of bonuses claimed during the notice period in wrongful dismissal cases have been somewhat inconsistent. The Supreme Court of Canada recently gave leave to appeal in a case on the subject which may lead that Court to provide further guidance in the area. See David Matthews v. Ocean Nutrition Canada Limited, 2018 NSCA 44, and 2019 CanLII 5975 (SCC). However, the legal context is sufficiently different that I am persuaded that this issue could not assist Mr. O’Neil’s complaint in any event.

74Counsel for the employer cautions that the Board does not have the power to create the terms and conditions, and is limited to interpreting the existing terms and conditions to see if they were applied properly in the factual circumstances. In counsel’s submission, this includes whether the employer waived any of the terms and conditions of employment, or should, as a matter of fairness, be prevented, or estopped, from relying on any of them.

75Counsel argues that under the policy provisions, the complainant was not eligible for the payments, and the employer did not waive the eligibility requirements, as waiver requires knowledge of a right, and an intention to forego the benefit of the application of some provisions, of which there is no evidence in this case. Since the evidence is that the compensation directives issued in late 2015 did not exist at the relevant time, waiver cannot be applicable, in the employer’s view.

76As for the related concept of promissory estoppel, the employer could be prevented from relying on the policy provisions if Mr. O’Neil had been given to understand that the employer would not rely on such policy provisions, and then he had acted to his detriment, on the basis of a representation or misrepresentation on the employer’s part. There is no evidence here that the employer represented that it would carve out some exception from any potential eligibility requirement for Mr. O’Neil that they later tried to rely on, so the employer argues there is no evidence of the kind of representation that would be required for promissory estoppel either.

77Counsel for the employer submits that the Board should only apply such concepts if the employer knowingly withheld information that mislead him in some fashion, thereby depriving him of the ability to make decision – something akin to a misrepresentation. Since no one knew whether there would be a pay improvement for those at the maximum of their salary range, or any adjustment of the pay ranges, or what the rules would be and to whom they would apply, counsel argues that it was impossible for a misrepresentation to have taken place in the undisputed facts of this case.

78Counsel made an alternative argument in response to the argument made by Mr. O’Neil as to whether he would have chosen an exit option or redeployment, and that he might have remained within the workplace in the context of a Notice of Layoff if he had known of the negative consequences of exiting. Counsel says the more determinative choice was made early on by Mr. O’Neil when he chose between asking for another assignment and a notice of lay-off. He advised his manager that his preference was the latter, since he was interested in retiring. Counsel emphasizes that at the time he made his decisions in 2014 and 2015, there were two trade-offs, one with known elements and one involving a completely unknown element. The known trade-off was that if he said he would prefer to remain employed and asked to be assigned to another position, he could have been actively working at the end of the fiscal year, and he would have been required to work through to April 30. He then would not have received 6 months’ pay in lieu of working, and no enhanced severance, only the regular severance any retiring employee would have received. By choosing instead to receive a notice of lay-off, the benefit is being able to leave, receive 6 months’ pay with no obligation to work, and enhanced severance of an additional week’s pay for each of his 35 years of service.

79The evidence is clear that Mr. O’Neil had discussions with his manager prior to receiving a written notice that his position was to be surplused in which he expressed a preference to receive a Notice of Lay-off rather than be assigned to a new position. Counsel characterizes the later choice, between asking for salary continuance rather than working notice, as one with an unknown component to it, since no one could know at that point whether there would be any retroactive increases, and if so, what the eligibility rules would be. This is compared to the significant known benefit of opting for Notice of Lay-off which brings with it enhanced severance.

80Counsel acknowledged that Mr. O’Neil feels terribly wronged, and sees the employer as unfair, but submitted it is also important to acknowledge the substantial benefit that flowed from the decision he made.

81Also, in the alternative, Counsel addressed the notion that the employer gave him no option.

82Counsel emphasized that although the employer decides the timing of the Notice of Lay-off, the decision making then shifts to the employee to decide either to try to remain employed for the long term, in which case they choose redeployment, or they ask for an earlier exit. That option is theirs. The evidence is that Mr. O’Neil had made that decision months earlier. When confronted with the fact that his job would be disappearing, and the option of Notice of Lay-off or reassignment, he decided that he wanted to retire in April 2015. He made it clear to the employer that he was not looking to be redeployed; rather he was looking to get to his retirement date. Mr. O’Neil acknowledged in his evidence that both parties knew that, and the employer was prepared to offer a Notice of Lay-off which would get him there, and would give him the additional benefit of not working for 6 months, but with pay, and then enhanced severance.

83Mr. O’Neil suggested that the employer had no option but to deliver a Notice of Lay-off. Nonetheless, Ms. Savarie testified that direct assignment without Notice of Lay-off was an option for managerial employees. Counsel emphasizes that if Mr. O’Neil had been directly assigned to another position, there would have been no risk of being dismissed. The workforce adjustment policy only applies, in counsel’s submission, where someone is at risk of dismissal.

84Mr. O’Neil did not agree that the employer had the option of avoiding a Notice of Lay-off when a position was to be eliminated, and thought that all one could glean from the evidence that Ms. Savarie had done so on a number of occasions, was that the employee in question had accepted it. I do not find this issue impacts the outcome of this matter, but I am persuaded that whether or not an assignment or transfer is appropriate will depend on many factors, which need not be discussed here. Mr. O’Neil did not object to receiving a notice of lay-off rather than being offered another job, and it is clear that it was a known benefit because if he had worked to his retirement date without such notice, he would only have normal severance rather than the enhanced severance he received after the Notice of Lay-off.

85Having considered the evidence and argument on the issue of the information base afforded to Mr. O’Neil prior to his selection of his preferred options and exit from the workplace, I find no evidence of misrepresentation or withholding of information within the employer’s possession from Mr. O’Neil. The information which Mr. O’Neil would like to have had before he made his choices was not available to anyone; the situation is part of the ever-present absence of certainty about the future in which everyone has to nonetheless make important decisions. In all the circumstances, I find no entitlement flowing from the behaviour of the employer’s representatives in respect of the information made available to Mr. O’Neil before he made his decisions.

c) The Exit Agreement and Release

86In May 2015, in order to facilitate the release of the monies owed him on his retirement, the complainant signed a document entitled “Management Compensation Plan and Excluded Category Agreement of Resignation and Release”. Its first paragraph recites the main categories of payment he is to receive, i.e., payment for the remaining portion of the six months’ notice period, plus a maximum of twenty-six weeks’ termination pay, and enhanced severance pay of an additional one week of salary for each of his 35 years of service, minus the pay during the period of salary continuance. The document bears the date of February 10, 2015, but the evidence is clear that it was not sent to the complainant until March 19, 2015. Mr. O’Neil says he was in transit to an extended vacation by then and he signed it in May 2015, upon his return. It appears that the February date may be the date on which the employer representative, Caroline Savarie, signed it, as it is common ground that her signature and the date were on it when it was sent to the complainant.

87The complainant acknowledges that he received the monies referred to based on his retirement date of April 30, 2015, other than the retroactive increases claimed in this complaint. The last two paragraphs of the document, which contain the portion setting out what claims the employee releases in return for payment of the money referred to above, reads as follows:

In consideration of the terms of payment set out in paragraph 1, the Employee hereby releases and forever discharges the Employer, its employees, agents, directors and servants of and from all actions, cause of actions, claims and demands of every nature and kind arising out of or as a result of their employment with or resignation from employment with the Employer, including but not limited to all claims arising under the Human Rights Code, the Employment Standards Act, and the Public Service of Ontario Act (PSOA) and its regulations. The Employee acknowledges that the payments above satisfy any and all obligations which the Employer may have pursuant to the Employment Standards Act, and the PSOA and its regulations and agrees to indemnify the Ministry in full should it be determined that the Employer is liable to the Employee for any monies pursuant to the said legislation.

The Employee acknowledges that he/she fully understands the terms of this Agreement that he/she accepts said terms after having had an opportunity to seek and obtain independent legal advice on any and all matters requiring clarification.

88Prior to receiving his remaining entitlements in respect of his retirement, Mr. O’Neil signed the release referred to above, which releases the employer from “claims and demands of every nature and kind arising out of or as a result of their employment with or resignation from employment with the Employer”. There is no doubt that what is claimed here is a claim arising out of his employment, and on its face, the above language is a complete bar to the success of this complaint.

89Counsel for the employer acknowledges that it could have been relied on at the outset, but argues that nonetheless, at the end of the day, it prevents the remedies the complainant seeks.

90For his part, the complainant acknowledges he signed the document, but argues that, in all the circumstances, it should just be seen as a document which was signed so as not to further delay the payment of the monies owed him up to that point, not a document that precluded access to his entitlement under the pay policies in question, which he could not have known about at the time, as they were not yet in existence. Further, he argues that the fact that the date on the document is not when it was signed amounts to an attempt by the employer to mislead the Board.

91The release is part of a contract, and answering the question as to whether it should prevent this complaint from being entertained further involves interpreting its terms to ascertain what the parties, Mr. O’Neil and the employer, intended in that respect. The accepted legal rules of interpretation include that the parties are assumed to have expressed their intentions in the words that they used, and that they are to be held to the plain meaning of those words, understood in context, unless to do so would lead to some absurd or illegal result, or the circumstances of signing were such that the document should not be considered a valid contract.

92Having carefully considered all of the circumstances of this case, it is my view that the release says very clearly that the complainant is giving up any further claims and demands arising out of his employment with the employer. There is no evidence here of duress, or any other reason in law why the complainant should not be held to the document he signed. He had the opportunity to get legal or other advice if he was unclear about the terms. He may have been anxious to access the funds owed to him when he returned from his vacation, but that does not relieve him of the legal consequences of what he signed. At the time, neither the employer nor the complainant could have known about the content of the retroactive compensation provisions on which this complaint is based, but I am persuaded that the wording of the release is an effective bar to the success of this claim, even if I had found he would otherwise have had any entitlement under the policies in question. I agree with the employer that the fact that the document bears a date in February does not affect its validity. The evidence is clear that Mr. O’Neil signed it in May rather than February, and that both parties had capacity and authority to sign it.

93In Mr. O’Neil’s submissions about why the release should not be considered legally binding, he refers to the decision Stevens v. Sifton Properties Ltd., 2012 ONSC 5508, which affirms the undisputed principle that parties cannot contract out of the Employment Standards Act [ESA]. He is of the view that the employer’s refusal to pay the increases during his period of salary continuance amount to a breach of the ESA, and that interpreting the documents in question to permit that would amount to allowing the parties to contract out of the ESA.

94Mr. O’Neil’s assertion that there is a breach of the ESA involved here refers to provisions in Part XVI of that statute, which limit an employer’s ability to change terms and conditions of employment during the period of notice of termination. These are set out in the Appendix to this decision for ease of reference. He particularly relies on s. 60, which requires that, during certain kinds of notice periods before termination, an employer shall not reduce the employee’s wage rate or alter any other term or condition of employment. I am not persuaded that these sections assist Mr. O’Neil’s argument. I note as well that there is no suggestion that his notice or severance pay failed to meet the statutory minima, and I do not find any other breach of the ESA on the facts of this case.

95Assuming for the sake of argument, without deciding that these sections are at all applicable to the complainant’s notice period leading up to his retirement, there is no evidence that the employer reduced his wage rate during the notice period pending retirement or lay-off. To the extent that Mr. O’Neil is arguing that he was not paid the wages he was entitled to receive during that period, he is referring to the fact that he was not retroactively paid monies under a pay policy that was not in existence at the time. Quite apart from my findings elsewhere in this decision about his entitlement under the terms of those policies, the ESA is squarely addressing entitlements in effect during the actual notice period. There is no suggestion that the employer failed to pay the wage rates in effect during the actual period up to April 30, 2015. No authority was cited that would make those sections applicable in the facts of this case. The Stevens decision, cited above, refers to a case of dismissal for cause, with no notice, and a debate over whether common law or statutory notice periods applied. It deals with a situation which is not sufficiently similar to that of Mr. O’Neil, to be determinative of any of the issues in this case, other than the principle that the parties cannot contract out of the ESA, which is not disputed.

96In any event, I am not of the view that the release language in the exit agreement was an attempt to contract out of the ESA. Its language is specifically an acknowledgement that the payments meet the obligations under the statute, rather than suggesting any attempt to authorize non-compliance.

97Mr. O’Neil also sees it as a change of terms and conditions of employment to retroactively strip him of his position and characterize his period of salary continuance as a leave of absence.

98As a factual matter, I find that Mr. O’Neil was neither stripped of his position during the period January 23 through April 30, 2015, nor was he placed on the type of leave of absence which would have created a hiatus or any additional entitlements beyond those promised in the material available to him before he signed the form choosing the exit option he did. The findings above about not being in a position and being on a leave of absence do not represent a finding that Mr. O’Neil got less than he was promised. Rather, they are findings about the best available interpretation of the compensation directives issued months later, which, in real time, were incapable of changing anything that occurred during the actual notice period.

99There are many statements in reported cases about what factors will be sufficient to find a contract is not legally binding. Glazer v. Hill, 2019 ONSC 809 is a recent Ontario case which states the longstanding principles as follows at para. 36 and ff:

The traditional grounds for setting aside a contract are: mistake, misrepresentation, unconscionability, and incapacity, with all of their various subcategories.

[The plaintiff] claims duress. Duress is a sub-category of unconscionability. In order for [the plaintiff] to rely on duress as the basis to set aside his/her consent, he/she must prove that he/she was subjected to illegitimate pressure to such a degree that his/her will was coerced. The plaintiff must establish, on a balance of probabilities, that illegitimate pressure put her in a position where he/she had no realistic alternative but to agree.

In Stott at para. 48, the Court of Appeal emphasized that:

“not all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to a 'coercion of the will', to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no 'realistic alternative' but to submit to it...duress has the effect of vitiating consent and an agreement obtained through duress is voidable at the instance of the party subjected to the duress...”

100Although there was the pressure of the workplace transformation and the inevitable stress of the resulting displacement in this case, I find that there was very little pressure from the employer’s representatives. They inquired early on in the transformation process as to Mr. O’Neil’s preferences and accommodated them. I accept that he had a very different view about the effect of the announcement of his retirement than Ms. Savarie’s. Nonetheless I also accept her evidence that in saying Mr. O’Neil was retiring and that the changes would take place in January, she was describing changes to the unit from a workplace point of view rather than referencing specific entitlements of each of the impacted employees. There is no suggestion that she was saying that employees could not change their minds, and I do not find the memo to have deprived Mr. O’Neil of any choices. If Mr. O’Neil did not want to leave in January, he had over two months from that memo to advise the employer, but he did not do so.

101I am persuaded that Mr. O’Neil made a decision on the information available at the time for his own good reasons, and not because he was pressured by the employer. From his long experience in HR he knew at least as much about transitions in the public service as any reasonable person, and I find no reason to interfere with the plain meaning of the options and exit agreement Mr. O’Neil signed. There is certainly no evidence of anything that amounts in law to any of the accepted grounds for setting aside a contract.

Costs

102As to Mr. O’Neil’s claim for compensation for the time and expense of pursuing his claim, counsel argues that the board has consistently held there is no authority for that, and this is not a case in which to depart from that longstanding approach. I accept that is the case here, and there will be no order as to costs. Mr. O’Neil has not been successful in his complaint and the employer’s conduct was far from egregious.

103Mr. O’Neil was also dismayed that, during the hearing, a number of documents were disclosed with inaccuracies whether as to their dates, or whether they were draft or final. He found the lack of attention to detail on the part of the employer’s representatives inexcusable, and their approach to the issues he raised to be evidence of missed opportunities for clarity and moving the matter along expeditiously. I am not in a position to know what happened behind the scenes to produce the problems Mr. O’Neil refers to. Although there was much about the employer’s handling of information and policy language that leaves room for improvement, I am nonetheless confident than the evidence is clear in the end, and that issues concerning various versions of documents were clarified in the evidence and did not affect the outcome of this case.

Summary

104In summary, Mr. O’Neil’s complaint is not successful because the Board finds he did not meet the eligibility requirements for the payments he seeks. Based on the ordinary meaning of the terms in context, Mr. O’Neil was not in a non-bargaining unit position on March 31, 2015, as his position had been abolished. Rather, he was absent from the workplace, with leave of the employer, pending retirement, which in all the applicable circumstances is reasonably and objectively considered a leave of absence.

105Further, there is no evidence of misrepresentation, duress or illegality in the manner in which the employer dealt with Mr. O’Neil in the lead-up to his exit from the work place. As well, there is no reason in law not to enforce the exit agreement signed by the complainant which bars any further redress flowing from his employment with the Crown, and I find no breach of the Employment Standards Act in the circumstances of this case.

106For the above reasons, the complaint is dismissed

Dated at Toronto this 5th day of March, 2019

APPENDIX A

Excerpts from the Employment Standards Act

PART XV TERMINATION AND SEVERANCE OF EMPLOYMENT

Termination of Employment

No termination without notice

54 No employer shall terminate the employment of an employee who has been continuously employed for three months or more unless the employer,

(a) has given to the employee written notice of termination in accordance with section 57 or 58 and the notice has expired; or

(b) has complied with section 61. 2000, c. 41, s. 54.

Prescribed employees not entitled

55 Prescribed employees are not entitled to notice of termination or termination pay under this Part. 2000, c. 41, s. 55.

What constitutes termination

56 (1) An employer terminates the employment of an employee for purposes of section 54 if,

(a) the employer dismisses the employee or otherwise refuses or is unable to continue employing him or her;

(b) the employer constructively dismisses the employee and the employee resigns from his or her employment in response to that within a reasonable period; or

(c) the employer lays the employee off for a period longer than the period of a temporary lay-off. 2000, c. 41, s. 56 (1).

Temporary lay-off

(2) For the purpose of clause (1) (c), a temporary layoff is,

(a) a lay-off of not more than 13 weeks in any period of 20 consecutive weeks;

(b) a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and,

(i) the employee continues to receive substantial payments from the employer,

(ii) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,

(iii) the employee receives supplementary unemployment benefits,

(iv) the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,

(v) the employer recalls the employee within the time approved by the Director, or

(vi) in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or

(c) in the case of an employee represented by a trade union, a lay-off longer than a lay-off described in clause (b) where the employer recalls the employee within the time set out in an agreement between the employer and the trade union. 2000, c. 41, s. 56 (2); 2001, c. 9, Sched. I, s. 1 (12).

Definition

(3) In subsections (3.1) to (3.6),

“excluded week” means a week during which, for one or more days, the employee is not able to work, is not available for work, is subject to a disciplinary suspension or is not provided with work because of a strike or lock-out occurring at his or her place of employment or elsewhere. 2002, c. 18, Sched. J, s. 3 (23).

Lay-off, regular work week

(3.1) For the purpose of subsection (2), an employee who has a regular work week is laid off for a week if,

(a) in that week, the employee earns less than one-half the amount he or she would earn at his or her regular rate in a regular work week; and

(b) the week is not an excluded week. 2002, c. 18, Sched. J, s. 3 (23).

Effect of excluded week

(3.2) For the purpose of clauses (2) (a) and (b), an excluded week shall be counted as part of the periods of 20 and 52 weeks. 2002, c. 18, Sched. J, s. 3 (23).

Lay-off, no regular work week

(3.3) For the purposes of clauses (1) (c) and (2) (a), an employee who does not have a regular work week is laid off for a period longer than the period of a temporary lay-off if for more than 13 weeks in any period of 20 consecutive weeks he or she earns less than one-half the average amount he or she earned per week in the period of 12 consecutive weeks that preceded the 20-week period. 2002, c. 18, Sched. J, s. 3 (23).

Effect of excluded week

(3.4) For the purposes of subsection (3.3),

(a) an excluded week shall not be counted as part of the 13 or more weeks but shall be counted as part of the 20-week period; and

(b) if the 12-week period contains an excluded week, the average amount earned shall be calculated based on the earnings in weeks that were not excluded weeks and the number of weeks that were not excluded. 2002, c. 18, Sched. J, s. 3 (23).

Lay-off, no regular work week

(3.5) For the purposes of clauses (1) (c) and (2) (b), an employee who does not have a regular work week is laid off for a period longer than the period of a temporary lay-off if for 35 or more weeks in any period of 52 consecutive weeks he or she earns less than one-half the average amount he or she earned per week in the period of 12 consecutive weeks that preceded the 52-week period. 2002, c. 18, Sched. J, s. 3 (23).

Effect of excluded week

(3.6) For the purposes of subsection (3.5),

(a) an excluded week shall not be counted as part of the 35 or more weeks but shall be counted as part of the 52-week period; and

(b) if the 12-week period contains an excluded week, the average amount earned shall be calculated based on the earnings in weeks that were not excluded weeks and the number of weeks that were not excluded. 2002, c. 18, Sched. J, s. 3 (23).

Temporary lay-off not termination

(4) An employer who lays an employee off without specifying a recall date shall not be considered to terminate the employment of the employee, unless the period of the lay-off exceeds that of a temporary lay-off. 2000, c. 41, s. 56 (4).

Deemed termination date

(5) If an employer terminates the employment of an employee under clause (1) (c), the employment shall be deemed to be terminated on the first day of the lay-off. 2000, c. 41, s. 56 (5).

Employer notice period

57 The notice of termination under section 54 shall be given,

(a) at least one week before the termination, if the employee’s period of employment is less than one year;

(b) at least two weeks before the termination, if the employee’s period of employment is one year or more and fewer than three years;

(c) at least three weeks before the termination, if the employee’s period of employment is three years or more and fewer than four years;

(d) at least four weeks before the termination, if the employee’s period of employment is four years or more and fewer than five years;

(e) at least five weeks before the termination, if the employee’s period of employment is five years or more and fewer than six years;

(f) at least six weeks before the termination, if the employee’s period of employment is six years or more and fewer than seven years;

(g) at least seven weeks before the termination, if the employee’s period of employment is seven years or more and fewer than eight years; or

(h) at least eight weeks before the termination, if the employee’s period of employment is eight years or more. 2000, c. 41, s. 57.

Notice, 50 or more employees

58 (1) Despite section 57, the employer shall give notice of termination in the prescribed manner and for the prescribed period if the employer terminates the employment of 50 or more employees at the employer’s establishment in the same four-week period. 2000, c. 41, s. 58 (1).

Information

(2) An employer who is required to give notice under this section,

(a) shall provide to the Director the prescribed information in a form approved by the Director; and

(b) shall, on the first day of the notice period, post in the employer’s establishment the prescribed information in a form approved by the Director. 2000, c. 41, s. 58 (2).

Content

(3) The information required under subsection (2) may include,

(a) the economic circumstances surrounding the terminations;

(b) any consultations that have been or are proposed to take place with communities in which the terminations will take place or with the affected employees or their agent in connection with the terminations;

(c) any proposed adjustment measures and the number of employees expected to benefit from each; and

(d) a statistical profile of the affected employees. 2000, c. 41, s. 58 (3).

When notice effective

(4) The notice required under subsection (1) shall be deemed not to have been given until the Director receives the information required under clause (2) (a). 2000, c. 41, s. 58 (4).

Posting

(5) The employer shall post the information required under clause (2) (b) in at least one conspicuous place in the employer’s establishment where it is likely to come to the attention of the affected employees and the employer shall keep that information posted throughout the notice period required under this section. 2000, c. 41, s. 58 (5).

Employee notice

(6) An employee to whom notice has been given under this section shall not terminate his or her employment without first giving the employer written notice,

(a) at least one week before doing so, if his or her period of employment is less than two years; or

(b) at least two weeks before doing so, if his or her period of employment is two years or more. 2000, c. 41, s. 58 (6).

Exception

(7) Subsection (6) does not apply if the employer constructively dismisses the employee or breaches a term of the employment contract, whether or not such a breach would constitute a constructive dismissal. 2000, c. 41, s. 58 (7).

Period of employment: included, excluded time

59 (1) Time spent by an employee on leave or other inactive employment is included in determining his or her period of employment. 2000, c. 41, s. 59 (1).

Exception

(2) Despite subsection (1), if an employee’s employment was terminated as a result of a lay-off, no part of the lay-off period after the deemed termination date shall be included in determining his or her period of employment. 2000, c. 41, s. 59 (2).

Requirements during notice period

60 (1) During a notice period under section 57 or 58, the employer,

(a) shall not reduce the employee’s wage rate or alter any other term or condition of employment;

(b) shall in each week pay the employee the wages the employee is entitled to receive, which in no case shall be less than his or her regular wages for a regular work week; and

(c) shall continue to make whatever benefit plan contributions would be required to be made in order to maintain the employee’s benefits under the plan until the end of the notice period. 2000, c. 41, s. 60 (1).

No regular work week

(2) For the purposes of clause (1) (b), if the employee does not have a regular work week or if the employee is paid on a basis other than time, the employer shall pay the employee an amount equal to the average amount of regular wages earned by the employee per week for the weeks in which the employee worked in the period of 12 weeks immediately preceding the day on which notice was given. 2001, c. 9, Sched. I, s. 1 (13).

Benefit plan contributions

(3) If an employer fails to contribute to a benefit plan contrary to clause (1) (c), an amount equal to the amount the employer should have contributed shall be deemed to be unpaid wages for the purpose of section 103. 2000, c. 41, s. 60 (3).

Same

(4) Nothing in subsection (3) precludes the employee from an entitlement that he or she may have under a benefit plan. 2000, c. 41, s. 60 (4).

Pay instead of notice

61 (1) An employer may terminate the employment of an employee without notice or with less notice than is required under section 57 or 58 if the employer,

(a) pays to the employee termination pay in a lump sum equal to the amount the employee would have been entitled to receive under section 60 had notice been given in accordance with that section; and

(b) continues to make whatever benefit plan contributions would be required to be made in order to maintain the benefits to which the employee would have been entitled had he or she continued to be employed during the period of notice that he or she would otherwise have been entitled to receive. 2000, c. 41, s. 61 (1); 2001, c. 9, Sched. I, s. 1 (14).