Award Number 19-004

Brantford Police Association
- and -
Brantford Police Services Board

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Award Date: 2019-07-08
Arbitrator: Bendel, Michael
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Municipality: Brantford
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Region: South West
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Classifications: Associations
Grievor: H. DaCosta
Appearances: C. V. (Nini) Jones, L. Pearce and others, for the Association
Length of Award:14 pp
Collective Agreements Cit. Art. 10 and 14 (uniform); Art. 7 (civilian)
Statutory Cit. Police Services Act, s. 123


Associations   Duty of fair representation - Compensation due while in receipt of benefits from Workplace Safety and Insurance Board - Grievor alleged association failed to represent him fairly in its handling of his dispute with employer regarding compensation due while he received WSIB benefits - Grievor’s accusations against association president were unsubstantiated - Association went well beyond what was required of it in representing grievor - Grievance dismissed.


The association and the police services board (employer) were unable to agree on all the terms of a renewal collective agreement to replace the one which expired on December 30, 2016. They agreed to refer outstanding issues to interest arbitration, including the issue of compensation due to employees receiving Workplace Safety and Insurance Board (WSIB) benefits. The employer wanted to change the way it was paying employees who received WSIB benefits. The employer argued before the interest arbitrator that the net income received by such employees, whose WSIB benefits were topped up by the employer, exceeded what they would have earned while working. Arbitrator Trachuk found that the employer’s prevailing method resulted in members receiving greater compensation than they would if they continued to work, contrary to language in the expired agreement which provided that members would be paid neither more nor less than their regular salaries. In her view, it was unnecessary to change language which already permitted the employer’s objective. She ordered an amendment to Article 10.04 of the uniform agreement and Art. 7.09 of the civilian agreement, viz. the addition of a clause stating: “Employees in receipt of WSIB benefits must apply for an OMERS disability waiver in accordance with their earliest eligibility date for such waiver.” The employer announced a revised payment model: members would receive benefits directly from the WSIB, while the employer would supplement the WSIB payment “up to the net pay the member would receive from their regular salary”. After the interest arbitration award was released the association held two meetings to present the terms of the award to members. Extensive discussion followed about the implementation of the new payment model. The grievor had concerns with the new model, which he expressed to the association. His main concern was that the employer had misinterpreted the collective agreement, which required that “regular salary” be the same as before, meaning that “net pay” had to be the same as before. The grievor’s other concern was that with no premiums being forwarded to OMERS in respect of those receiving WSIB benefits, the employer was enjoying a saving which should have been reflected in the calculation of top-up. The association and the employer agreed to ask Arbitrator Trachuk to rule on the outstanding dispute arising from the amendments to Art. 10 and Art. 7 – a dispute which essentially reflected the concerns raised by the grievor. In a supplementary award, the arbitrator largely confirmed the conclusions of the interest arbitration award and endorsed the employer’s implementation of the new provisions; she did not validate the grievor’s criticisms and arguments. The grievor then filed a grievance with the employer, without the support or approval of the association. He repeated his objections to the manner in which the board was implementing the changes to Art. 10.04. After filing his grievance, the grievor resumed his correspondence with the association, insisting that the employer’s method should be appealed, despite the association president’s explanation of why the association would not be pursuing the matter. The employer denied the grievance. Thereafter, the grievor wrote to bargaining unit members, copied to Arbitrator Trachuk, explaining that at the upcoming membership meeting he would be seeking financial support for pursuing his claim against the employer. He wrote to the membership again after the meeting, reiterating his position on his ongoing dispute with the association president. The association then wrote an open letter to members, explaining the dispute and reassuring them that injured members would receive the same amount of pre-injury take home pay. The next day, the grievor sent a reply to the association executive, accusing the president of improper behaviour. Subsequently, he filed a request for conciliation and following that, for arbitration.


The grievor argued that the association was seemingly content if an employee received the same net pay, even though the agreement required that the injured employee receive income equal to his or her regular salary. The grievor asserted that the association was ignoring the language of the collective agreement and should be ordered to pursue a grievance. The association responded that if the grievor’s argument were accepted, employees would receive substantially more income while in receipt of WSIB benefits than while working – an absurd result. The association denied that it had failed to represent the grievor fairly, submitting that in fact it had gone beyond what was required or reasonable.

Award #

The issue was whether the association’s handling of the grievor’s dispute with the employer fell below the standard expected of a bargaining agent. Bargaining agents were not expected to take every grievance to arbitration; provided they did not act in a manner that was arbitrary, capricious or tainted by bad faith, they had the discretion to decide which cases to pursue. In this case, it was clear from the voluminous e-mail correspondence that discussions between the grievor and the association were unusually full and extensive. However, the grievor was apparently fixated on his claim that employees in receipt of WSIB benefits were entitled to their “regular salary” and was either not listening to what the association repeatedly told him or was wilfully blind to certain realities. In addition to countless e-mail exchanges with the grievor, the association, with the consent of the employer, referred the issue of implementation back to Arbitrator Trachuk. Thus the grievor’s views were afforded a thorough airing before a neutral third party. The association also allowed the grievor to appeal to the membership for financial support of his ongoing campaign. The grievor leveled some serious charges against the association president, yet he led no evidence to support those accusations. These unsubstantiated allegations of impropriety detracted from the grievor’s personal credibility. The association went well beyond what was required of it, acting reasonably, honestly and without malice, despite the grievor’s provocative accusations. Accordingly, the association did not fail to represent the grievor fairly. Grievance dismissed.

Authorities Cited

• Renaud v. LaSalle (Town of) Police Association (2005), 151 L.A.C. (4th) 157; 216 OAC 1 (OCA) • Cumming v. Peterborough Police Association 2013 ONCA 670 (CanLII) • Alessandroni and Toronto Police Association (unreported), July 15, 2016 (Anderson); OPAC # 16-005 • Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509 • Lafrance and North Bay Police Association (2009), 187 L.A.C. 381 (Starkman); OPAC #09-10 • Senior, 2016 CanLII 45885 (OLRB)

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