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IN THE MATTER OF AN ARBITRATION
B e t w e e n:
OTTAWA-CARLETON REGIONAL POLICE ASSOCIATION
(the “Association”)
- and -
OTTAWA-CARLETON REGIONAL POLICE SERVICE
(the “Employer”)
and in the matter of a grievance relating to James Sheahan.
Russell Goodfellow - Sole Arbitrator
APPEARANCES FOR THE EMPLOYER:
Jacques Emond
APPEARANCES FOR THE ASSOCIATION:
Lawrence Greenspon (on November 3 and December 8, 2000, and March 2, 2001)
Susan Ballantyne (on January 25 and June 21, 2000)
Hearings were held in this matter in Ottawa on January 25, June 21, November 3 and
December 8, 2000 and March 2, 2001.
AWARD
This award arises out of a grievance filed on behalf of Sergeant James
Sheahan by the Nepean Regional Police Association. The representation rights formerly
held by that entity are now held by the Ottawa-Carleton Regional Police Association (the
“Association”).
The case was argued on the basis of an agreed statement of facts and some
additional oral and documentary evidence. The agreed facts are as follows:
AGREED STATEMENT OF FACTS
1. Jim Sheahan joined the Gloucester-Nepean Police Service as a
constable in 1962. In 1965, the two Townships separated, and he
continued with the Nepean Police Service.
2. In 1967, he was promoted to detective. In 1972, he returned to
uniform as a patrol sergeant and in 1975 was promoted to senior
sergeant. In 1979, he returned to the CID (Detective Office).
3. Between March and December 1984, Sheahan went on sick leave,
using credits from his sick leave bank.
4. In December 1986 Sheahan went on sick leave again, using banked
credits.
5. He submitted a claim to the WCB for both absences. His claim was
denied. When his sick leave credits were exhausted (after three
months, according to Sheahan), he received long term disability
benefits. These benefits continued for twenty months until November,
1988.
6. He then applied for an OMERS disability pension and began receiving
it in January 1989 (retroactive to November, 1988). His OMERS
disability pension was roughly half the salary he was earning when he
went off work in 1986. The pension is indexed annually and he has
continued to draw it throughout the period, up to the present time.
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7. When his WCB claim was denied, Sheahan appealed the decision.
The WCAT reversed the WCB and in November 1991 determined that
he was entitled to temporary total compensation benefits for the period
between March and December, 1984, and also for the period beginning
December, 1986. The WCAT found that his absences from work were
related to stress. The sick leave credits that Sheahan had used to cover
the period of those absences were reinstated. The Nepean Police
Service paid him a “top up” to full salary, in accordance with the
collective agreement, for the period up to January, 1989. Sheahan
advises that this payment was made in 1993.
8. The Nepean Police Service appealed the WCAT’s ruling.
9. At the end of the WCAT appeal process, it was determined that
Sheahan was entitled to temporary total compensation benefits. In
addition, he was granted a 15% permanent partial disability award and,
in accordance with the legislation, two pension supplements. The total
monthly amount of the pension and the two supplements is $981.16.
Sheahan has been specifically advised that the pension is subject to
review. If the WSIB decides to discontinue the legislation (sic), the
supplements will be discontinued as well. In addition, Sheahan
advises that he has been in receipt of a CPP disability pension since
1988 or 1989. This pension is in the amount of roughly $800 a month
and OMERS offsets a percentage of this against the disability pension
it pays Sheahan.
10. In 1993, the Nepean Police Association, on behalf of Sheahan, claimed
that the collective agreement entitled him to a top up of his WCB
benefits to the level of his full salary for the period subsequent to
January, 1989, as well as compensation for lost statutory holidays,
vacation, accumulated sick leave credits and other claims. The matter
was eventually referred to arbitration.
11. Effective January 1, 1995, under the provisions of Bill 143, the Polices
Services of Gloucester, Nepean and Ottawa were amalgamated into
one Ottawa-Carleton Regional Police Service and a new Ottawa-
Carleton collective agreement became effective in 1995, replacing
those of the three former Police Services.
12. A consent order (without Sheahan’s consent) was issued by arbitrator
Jackson in July, 1996. A copy is attached.
13. As part of the consent order, Sheahan was to be paid $67,451.45 less
statutory deductions. The order stipulates that this was in recognition
of the collective agreement obligation to top up the WCB payments to
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the level of his regular net salary for the period from January 1989 and
included the cash equivalent of 60 days accumulated vacation leave
credits. No breakdown was provided. Sheahan received
approximately $13,700 in May, 1997 and the balance in July, 1999.
14. In addition, the consent order required the employer to reinstate 640
hours to Sheahan’s sick leave credit bank. The employer advises that
this has been done. As soon as administratively possible after
termination of his employment relationship on May 26, 2000, Sheahan
will receive a payment of his sick leave credits up to a maximum of
130 days in accordance with the collective agreement.
15. The consent order also provided that “… all remaining accumulated
vacation and statutory holiday entitlements” would be disposed of by
providing Sheahan a paid leave to be taken immediately prior to
retirement. The employer advised that the paid leave period was to
commence August 1, 1998 and would continue until May 26, 2000
(Sheahan’s 60th birthday). While the consent order provided that the
paid leave period would be considered as pensionable time, Sheahan
advised that he did not want this. The employer and the Ottawa
Carleton Regional Police Association were prepared to accommodate
Sheahan in this, and OMERS has been so advised. He continued to
receive his OMERS disability pension throughout this period. Periods
of time during which an OMERS pension is received cannot be
regarded as pensionable time. Sheahan was put on paid leave in July,
1999 and at that time received a payment of leave credits retroactive to
August 1, 1998. This paid leave will continue until May 26, 2000.
16. The consent order indicated that at that time, the expectation was that
Sheahan could be returned to ongoing employment. Sheahan did
return, to modified duties, in April 1995. He worked until March 6,
1996, at which point he stopped work and filed a further WCB claim.
His claim was approved, for the period beginning March 9, 1996 to
February 1, 1997. The employer paid the top up they were required to
pay, pursuant to the collective agreement.
17. In December 1996 OMERS advised the employer that Sheahan had
been approved under the recurrence provisions of the OMERS
regulations. Sheahan continued to collect his disability pension with
OMERS throughout. See attached correspondence from OMERS.
18. At the time he applied for his OMERS disability pension in 1988,
Sheahan had 26 years of credited service and his disability pension
was provided on that basis. In 1988, Sheahan advises that his
disability pension was $19,862 (before the CPP offset) and $17,534.59
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(including the CPP offset). The pension has increased to _______
(before the offset) and $22,680 (including the offset) through indexing.
19. Article 15.02 of the former Nepean collective agreement provided as
follows:
“The Employer will ensure that a member’s normal
pension shall not be adversely affected as a result of an
Employee receiving Worker’s Compensation benefits.”
This provision came into effect on January 1, 1990 and was still in
the collective agreement at the time of the amalgamation in 1995.
20. Sheahan’s Position
Had Sheahan’s career not been interrupted by his work related
illness, and had he continued to work during the entire period, he
could expect to receive a pension of approximately $42,800 at age
60. As it is, though, he will only be receiving $22,680.00. It is
Sheahan’s position that article 15.02 requires the employer to
compensate him for this shortfall.
21. The Employer’s Position
It is the employer’s position that Sheahan’s pension was not
adversely affected by his receiving WCB benefits. He was not
credited with pensionable service during the time because he had
elected to take an OMERS disability pension. If Sheahan had not
taken his OMERS disability pension, beginning in 1988, or if he had
repaid part or all of his pension, he could have accrued additional
credited service with OMERS throughout the period in question.
This is in accordance with an OMERS regulation to that effect and
has nothing to do with WCB. For the period in question to count as
pensionable service, Sheahan would have to reimburse OMERS for
the pension payments made during the period. The employer will
also argue the applicability of 15.02.
22. The Issue
The sole outstanding issue is whether there is any entitlement owing
to Sheahan under article 15.02 of the former Nepean Collective
Agreement and, if so, the extent of any such entitlement.
The parties hereto agree to refer this sole issue to final and binding
arbitration and to confer jurisdiction to decide it on arbitrator
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Goodfellow. The parties also agree that Jackson is no longer seized
with any aspect of the July 1996 consent award.
23. All parties acknowledge that subject to the employer providing the
payments set out below, the employer has met all its obligations to
Sheahan and all issues pertaining to his employment and employment
relationship have been resolved.
(i) The employer will continue the bi-weekly payments of
(amount to be specified) less statutory deductions, to Sheahan
during the remainder of the paid leave period to May 26, 2000.
There is a dispute whether these payments for the year 2000 should
be adjusted by any salary increases that become effective prior to
May 26, 2000.
(ii) As soon as is administratively possible after termination of his
employment relationship on May 26, 2000 the employer will pay
out Sheahan’s sick leave credits to him (in accordance with
paragraph 14 of this Agreed Statement). It is agreed that this
payment will be for 130 days and will be calculated as follows:
130 days x daily rate. There is a dispute whether the daily rate for
the year 2000 should be adjusted by any salary increases that
become effective prior to May 26, 2000.
(iii) As soon as administratively possible after termination of his
employment relationship on May 26, 2000, the employer will pay
out all other outstanding leave credits accumulated to date of
termination which is agreed to be 35 days.
(iv) After termination of his employment relationship on May 26,
2000 the employer will provide the required monthly payments
towards the costs of extended medical and hospital coverage for
retirees, pursuant to article 20.01 of the collective agreement.
The agreed statement was signed and dated January 25, 2000 by representatives of the
Association and the Ottawa-Carleton Regional Police Service (the “Employer”), and by
Sergeant Sheahan. The information represented by the blank space in paragraph 18 of
the agreed statement was not provided at the hearing.
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On behalf of the Association, Sergeant Sheahan and his wife, Linda
Sheahan, gave evidence. Cathy Frederick, the former Director of Human Resources of
the Employer, and David Tomalty, the former Director of Staff Relations at the former
Nepean Police Service (“Nepean”), testified for the Employer.
As noted in the agreed statement, the only issues in the case are whether
Sergeant Sheahan is owed any monies by the Employer under article 15.02 of the
collective agreement that was in force between Nepean and the former Nepean Police
Association and, if so, how much. The critical portion of article 15.02 is set out in the
agreed facts. However, article 15 states in its entirety:
Article XV
WORKERS’ COMPENSATION
15.01 All members of the bargaining unit shall be covered by the
Workers’ Compensation Act regardless of rank or assigned
duties.
15.02 Where a member is absent from duty by reason of an injury or
illness sustained in the performance of his duties, the Board
shall award the member such salary as is necessary to ensure
that the member’s salary and benefits are not reduced by reason
of compensation payment while the members is unable to
perform such duties.
The Employer will ensure that a member’s normal pension
shall not be adversely affected as a result of an Employee
receiving Worker’s Compensation benefits.
The essence of the Association’s position is that Sergeant Sheahan is owed
monies under article 15.02 because his normal pension (i.e. the pension that he would
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have received had he continued working) was adversely affected because he was required
to apply for and accept OMERS disability benefits because of Nepean’s opposition to his
workers’ compensation claim. As a result of that opposition, the payment of workers’
compensation benefits was delayed for several years and Sergeant Sheahan was driven by
economic necessity to receive OMERS disability benefits. Thus, while, strictly speaking,
the reason that Sergeant Sheahan is not receiving a normal pension is not that he received
workers’ compensation benefits but because he received OMERS disability benefits, the
Association urges me to read article 15.02 expansively. The Association submits that
“fairness” should govern the interpretation and application of the provision and that any
ambiguity in its language or uncertainty in its application should be resolved in Sergeant
Sheahan’s favour. In particular, the Association submits that where a member suffers a
work-related disability and, because of the employer’s behaviour, is forced to seek out
and accept an alternate form of benefit to the type of benefit that would have triggered the
application of the provision, the provision should be deemed to apply. The employer
should not be entitled to do indirectly that which it cannot do directly.
In support of its position the Association relies on the testimony of David
Tomalty which, it submits, establishes that the relevant portion of article 15.02 was
introduced into the 1989-90 collective agreement to ensure that employees who are
unable to work due to a work-related illness or injury receive no greater or lesser pension
than they would have received had they continued working. Relying on the award of
arbitrator Weatherhill in Firestone Canada Inc. and United Rubber Workers, dated June
20, 1980 (unreported), the Association adds that when the consequences to an employee
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of a particular form of collective agreement interpretation are drastic, the language ought
to be interpreted strictly against the employer. The Association asserts that article 15.02
goes further than the second of the four categories of benefit obligations recognized in
Brown and Beatty, Canadian Labour Arbitration, 3rd ed., and amounts to a guarantee
that employees will not suffer financially as a result of injuries incurred on the job. The
Association refers to the following authorities: Canada Post Corporation and The
Canadian Union of Postal Workers, dated April 29, 1983 (Burkett); Green Valley
Fertilizer Ltd. and UFCW, Local 1518 (1991), 22 L.A.C. (4th ) 417 (Hope); W.R. Grace
and Company of Canada Ltd. and USWA, Local 2784 (2000), 85 L.A.C. (4th ) 156
(Mikus); The Board of Commissioners of Police for the City of North Bay and The North
Bay Police Association, dated August 1, 1991 (unreported) (Knopf).
The Employer submits that article 15.02 has no application to the facts of
this case. Sergeant Sheahan’s normal pension is not being adversely affected as a result
of his having received workers’ compensation benefits but because he chose to receive
OMERS disability benefits and because an employee cannot accrue service towards an
OMERS pension while in receipt of such benefits. Article 15.02 does not deal with the
receipt of OMERS disability benefits and its effects on the receipt of an OMERS pension,
and the evidence of David Tomalty does not suggest otherwise. According to Mr.
Tomalty, the second sentence of article 15.02 was introduced as part of a change to the
first sentence that was intended to address a problem that had arisen in relation to
Nepean’s obligation to top- up workers’ compensation benefits. It has nothing to do with
the payment of OMERS disability benefits.
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As for the allegation that Nepean acted improperly or that the Employer is
somehow responsible for the reduced pension, the Employer responds in two ways. First,
Sergeant Sheahan’s award of workers’ compensation benefits for post-traumatic stress
disorder was either the first or one of the very first of its kind in what was a highly
controversial and hotly debated area. Nepean was simply exercising its legitimate legal
rights to oppose a claim for benefits that it believed did not fall within the scope of the
legislation and its position was initially accepted by the Workers’ Compensation Board.
Second, Sergeant Sheahan must accept responsibility for his own choices. Even if it can
be said that these choices did not include the initial decision to apply for and accept
OMERS disability benefits, they certainly include the decision to continue receiving such
benefits after being in receipt of other funds (including workers’ compensation benefits)
in full knowledge of the consequences to the retirement pension and to decline to “buy
back” any pensionable time with the various funds received. Indeed, in respect of the
period 1988-1993, between the payment of workers’ compensation benefits, the “top- up”
to full salary and the receipt of OMERS disability benefits, Sergeant Sheahan actually
received more money than he would have received had he been working; so also he
continued to receive OMERS disability benefits while returning to work in 1995-1996 on
full salary. This amounts to an over-payment or windfall benefit that Sergeant Sheahan
chose to keep.
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Finally, the Emp loyer notes that article 15.02 came into force after
Sergeant Sheahan began receiving OMERS disability benefits and that it was
discontinued well before the date of his retirement. As a result, and for that reason alone,
the Employer submits that it owes no obligations to Sergeant Sheahan under article
15.02.
In reply, the Association submits that the Employer’s “windfall” argument
has been rejected in the case law: see The Board of Commissioners of Police for the City
of North Bay, supra. As for the assertion that Sergeant Sheahan was, in effect, the author
of his own misfortune, the Association notes that Mrs. Sheahan tried actively, but failed,
to get OMERS to stop making disability payments in the last half of the year that
Sergeant Sheahan returned to work. Thereafter, when Sergeant Sheahan was again
forced to go off work, it did not make economic sense to stop receiving the OMERS
disability benefits and to accrue credited service given the relatively small amount that
would have been added to the retirement pension.
Finally, the Association submits that I ought not to entertain the argument
that article 15.02 cannot apply to Sergeant Sheahan because of the period of its operation.
According to the Association, the Employer did not identify this argument in the agreed
statement of facts or at any time prior to closing submissions. Nevertheless, and rather
than choosing to deal with the argument at a later date, the Association asserts that
Sergeant Sheahan is subject to the article because it was in force at the relevant time.
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The Association urges me to conclude that article 15.02 applies and to
order the Employer to make the necessary financial arrangements to ensure that Sergeant
Sheahan’s normal pension is not reduced and that he is provided with full compensation
for any losses that he may have suffered in the interim.
Decision
I am unable to find that article 15.02 applies to Sergeant Sheahan’s case.
The provision is crystal clear. It provides that a member’s normal pension
shall not be adversely affected as a result of the employee receiving workers’
compensation benefits. Perhaps regrettably, that is not what happened here. Sergeant
Sheahan’s normal pension is not being adversely affected because he received workers’
compensation benefits but because he received OMERS disability benefits and because
persons in receipt of such benefits cannot accrue pensionable service. With the greatest
of respect to the Association’s position, that is the beginning and end of the matter. The
obligation assumed by Nepean under article 15.02 was not to ensure that persons who
suffer work-related illnesses or injuries, or who apply for and receive OMERS disability
benefits, do not experience reduced pensions but, rather, that such effects do not result
from the employee receiving workers’ compensation benefits. Article 15.02 confers a
specific and limited form of protection that has nothing to do with the facts of this case.
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The Association seeks to overcome the plain wording of the provisio n,
however, in two ways: first, by arguing that Nepean caused the claim for OMERS
disability benefits and, therefore, the reduced pension by opposing Sergeant Sheahan’s
claim for workers’ compensation benefits; second, by arguing that article 15.02 should be
interpreted expansively, or strictly against the Employer, and in accordance with
considerations of “fairness”. In connection with the second argument, the Association
relies on the evidence of David Tomalty and a statement from the Firestone award,
supra.
Taking these points in the reverse order, I begin by noting that evidence
given by a witness that would seek to vary the meaning of a clear and unambiguous term
of a collective agreement is, strictly speaking, inadmissible. However, even were I to
consider Mr. Tomalty’s evidence, I would not have found it to be of assistance to the
Association’s case. The uncontradicted evidence of Mr. Tomalty – a witness called by
the Employer – was that the sentence in question was added to article 15.02 because of a
change in language that had been requested and obtained by Nepean to the first sentence
of the article. Mr. Tomalty testified that under the former language situations had arisen
in which employees received, or were deemed to be entitled to receive, more pay while
on workers’ compensation benefits than they would have received had they been
working. Apparently, this was because Nepean was required to top-up an employee’s
workers’ compensation benefits to gross pay and because of the non-taxable nature of
such benefits. As a result, Nepean negotiated a change to the first sentence of the
provision that was intended to clarify that its top- up obligations were only to net pay and
13
that this, in turn, led to the addition of the second sentence which was meant to ensure
that a member’s retirement pension would not be adversely affected as a result.
Despite Mr. Greenspon’s best efforts in cross-examination to separate Mr.
Tomalty’s statement as to the nature of the protection (no reduction in pension) from the
cause stated in the article (the receipt of workers’ compensation benefits), this evidence
was unshaken. At no time did Mr. Tomalty suggest that the pension protection provided
by article 15.02 was tied to anything other than the payment of workers’ compensation
benefits. That, of course, is consistent with the heading of the article and the rest of its
subject matter. Thus, while, for the reasons given, I do not rely on Mr. Tomalty’s
evidence in support of the Employer’s position, I find that it provides no support for the
Association’s case.
With respect to the further assertion that I should interpret the language of
the collective agreement expansively, or strictly against the Employer, and having regard
to considerations of “fairness”, two things must be said. First and foremost, the
jurisdiction of a rights arbitrator under a collective agreement is limited to interpreting
and applying the provisions of the agreement. An arbitrator has no jurisdiction to, in
effect, alter, amend or vary the terms of the agreement in accordance with his or her own
notions of fairness. Where the language of the collective agreement is clear and
unambiguous, as it is in this case, an arbitrator cannot fail to give it its natural effect.
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The Firestone award of arbitrator Weatherill and the Canada Post award
of arbitrator Burkett do not suggest otherwise. Neither award advocates or employs the
kind of free-wheeling approach to collective agreement “interpretation” that the
Association would have me apply here. The issue in those cases was whether the word
“days” should be interpreted as “working days” or “calendar days” for purposes of a
“deemed abandonment” clause. There is no such ambiguity on the face of article 15.02
and none was established in the evidence.
Second, even if I were to evaluate the claim on the basis suggested by the
Association, I am far from certain that I would come to the conclusion that it proposes.
On the evidence, there is support for the Employer’s assertion that the Sheahans mus t
accept some measure of responsibility for the choices that they made and for the
consequences to Sergeant Sheahan’s pension.
There can be no doubt that the Sheahans found themselves in exceedingly
difficult economic circumstances in 1988. Sergeant Sheahan was under the care of a
physician and unable to work, his short and long-term disability benefits had run-out, his
health coverage had ceased and the Workers’ Compensation Board had refused his claim.
In an effort to support themselves and their fo ur daughters, the Sheahans were forced to
cash- in available insurance policies, re-mortgage their home and accept whatever form of
benefits they could find. No one could fail to understand or fault the Sheahans for the
choices that they made at this time, including the receipt of OMERS disability benefits.
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What is more difficult to understand, however, is the decision to continue
to receive OMERS disability benefits and, perhaps, to later refuse to buy-back
pensionable time, after the workers’ compensation benefits and other forms of payment
came on-stream. While there can be no suggestion that the Sheahans were “living high
off the hog” at that point, the initial cause of the claim for OMERS disability benefits
upon which the Association relies to und erpin its theory of the case – the absence of
workers’ compensation benefits – ceased; yet, the Sheahans chose to continue to receive
OMERS disability benefits in full knowledge of the consequences to Sergeant Sheahan’s
retirement pension. While it is true that Mrs. Sheahan sought to have the benefits
terminated after Sergeant Sheahan had been back at work for six months and in receipt of
full pay, this effort was abandoned when Sergeant Sheahan again went off work 6 months
later. Thus, even leaving aside the fact that Sergeant Sheahan ultimately received more
money in respect of certain years than he would have received had he been working, and
his receipt of OMERS disability benefits during the year that he was back at work on full
pay, the Sheahans appear to have run the risk that Sergeant Sheahan would later be able
to accumulate sufficient credited service in order to claim his full pension. The fact that
this did not pan-out does not provide a basis for shifting the burden of responsibility to
the Employer.
I must reiterate, however, that this grievance fails for the reasons already
given and that this line of inquiry – which the Association invites me to undertake – is
not contemplated by the wording of the collective agreement. Whether it was Nepean’s
position in respect of Sergeant Sheahan’s original workers’ compensation claims, the
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Sheahans’ own choices, or some combination of the two, that led to the reduced pension
is neither here nor there for purposes of the collective agreement. Artic le 15.02 simply
does not apply to the terms of this dispute and it cannot be made to apply by an inquiry
into the alleged causes of the receipt of the OMERS disability benefits.
Finally, in light of the foregoing, I find it unnecessary to address the
Employer’s further argument concerning the timing of the operation of article 15.02. In
fairness to Mr. Emond, however, I would note that not only does paragraph 21 of the
agreed facts state that “the Employer will also argue the applicability of 15.02” but a
review of my notes reveals that the issue was raised squarely in the Employer’s opening
statement – albeit a statement that was delivered prior to Mr. Greenspon being counsel on
the case.
In the result, the grievance is dismissed.
DATED at Oakville this 10th day of September, 2001.
______________________________
Russell Goodfellow - Sole Arbitrator
