Award Number 03-013

View full-text of this award in PDF or see Summary below

Award Date:	2003-10-07
Arbitrator:	Simmons, G. View awards by Simmons, G.
Municipality:	Carleton Place View awards from Carleton Place
Region:	East View awards from East
Classifications:	Disbandment, Retirement, Pensions
Grievor:	INSPECTOR WAYNE DRUMMOND
Appearances:	C.E. Clermont, for Insp. Drummond, for the Association L. Bordeleau, for the Employer, for the Employer
Length of Award:	12 pp
Collective Agreements Cit.	Employment agreement, s. 3.02
Statutory Cit.	Police Services Act, ss. 40, 122, 25(4)(1), 47(2); Employment Standards Act 2000, s. 57(h);Ontario Municipal Employees Retirement System, Act, s. 12(1); O. Reg. 890; municipal by-law no. 1662, s. 5

Summary

---

Disbandment   - Quantum of severance owed to Inspector - Inspector had entered into prior employment agreement which stated severance pay to be in accordance with Employment Standards Act in event of termination or wrongful dismissal - Board cannot rely on favourable term of employment contract after breaching such contract by wrongfully terminating Inspector - Inspector sought to bridge pension entitlement in order to receive unreduced pension - Board not obligated to continue salary beyond age 60 - Inspector awarded 28 months combined notice and severance pay - Issue of additional contributions to pension plan remitted to parties. Section 40

Retirement   - Mandatory retirement - Wrongful dismissal due to disbandment of force - In order to retire with unreduced pension Inspector would have to be maintained on payroll to age 61 - Police Services Act containing no provision for mandatory retirement - Statutory basis for retirement at age 60 found in Ontario Municipal Employees Retirement System Act and regulations - Finding that normal retirement age for police officers was age 60 buttressed by force’s consistent practice - Inspector aware of expectation and practice - Board entitled to insist that Inspector retire on 60th birthday. Section 40

Pensions   - Disbandment - Inspector 59 years old and had 28 years of service at time of disbandment - Inspector sought to bridge pension entitlement to facilitate unreduced pension - Common law principle of reasonable notice applied - Inspector entitled to 28 months combined notice and severance pay - Additional 13 months required to enable Inspector to receive unreduced pension - Matter of additional contributions to pension plan remitted to parties. Section 40

---

Facts

The town of Carleton Place disbanded its police force, effective April 30, 2003. The issue of severance for Inspector Drummond remained outstanding. At the time of disbandment, Inspector Drummond had 28 years of service. He had joined the force as a First Class Constable in 1975. On March 22, 2003 he turned 59.

At arbitration Inspector Drummond sought 36 months compensation. He also sought to bridge his pension entitlement, or to contribute to the plan until he had 30 years of service; assuming he would have retired at age 60 on March 22, 2004, he would still have been 13 months short of that objective. In order to achieve 30 years of service, he would have to remain on the payroll until May 1, 2005, at which time he would be 61 years old.

On November 23, 1998 Inspector Drummond and the Board entered an “employment agreement”, wherein, at art. 3.02, they agreed that, in the event of wrongful dismissal, Inspector Drummond’s claims would be in accordance with the Employment Standards Act. Under s. 57(h) of the ESA, that would limit his entitlement to eight weeks’ notice.

The parties agreed that Inspector Drummond’s termination as a result of disbandment was a wrongful dismissal. They disagreed as to whether the Board could insist that he retire at age 60.

Argument

The Board argued that Inspector Drummond’s severance entitlement was curtailed by the employment agreement - that is, his claim fell to be determined under the Employment Standards Act. Further, the Board maintained that no police officer had ever worked for the force beyond age 60, the practice in that regard was unvarying, and Inspector Drummond was aware of the practice.

In reply, counsel for Inspector Drummond argued that there was no mandatory retirement age specified under the Police Services Act, and that Inspector Drummond could choose to remain on past age 60. Awarding 36, or even 28 months’ compensation would enable him to attain 30 years of service and thus, to enjoy an unreduced pension.

Award #

Notwithstanding the absence of any provision for mandatory retirement in the Police Services Act, the normal retirement age for police officers was age 60. Under the Ontario Municipal Employees Retirement System Act, police officers and firefighters were enrolled as “NRA 60” plan members, in contrast to other municipal employees, who were “NRA 65”. Moreover, the town’s by-law no. 1662, enacted on December 31, 1962, stated that “policemen or firemen” were “entitled” to retire at age 60. Finally, the town had never apparently permitted any police officer to work past age 60, and Inspector Drummond acknowledged he was aware when he joined the force that 60 was the normal retirement age. Therefore, the Board was entitled to insist that Inspector Drummond retire on his 60th birthday.

However, the Inspector’s severance entitlement was not circumscribed by the Employment Standards Act. Having breached the employment contract by wrongfully dismissing the Inspector, the Board could not then take advantage of a more favourable provision and seek to enforce that provision. Consistent with the caselaw on disbandment of police forces, Inspector Drummond was entitled to damages in accordance with the common law principle of reasonable notice. The trend seemed to be one month’s salary per year of service. Accordingly, the Arbitrator awarded 28 months, in the form of combined notice and severance: salary and benefits to age 60 (March 31, 2004), and severance payments equaling salary and benefits for the remaining 17 months.

The Arbitrator favoured assisting Inspector Drummond in his goal of attaining full pension. He remitted the matter of additional contributions to the parties for resolution.

Authorities Cited

· The Town of Wiarton and Chief Constable Alfred Shultz (June 15, 1988, Jackson)

· Town of Parry Sound (December 14, 1989, Swan) ** This award has been selected for publication in Labour Arbitration

View full-text of this award in PDF