Questions About Stat Pay Suit

After having read the Windsor Star article (the article) that reported Berthiaume is suing the town for stat pay, some questions came to mind so I’m looking forward to the trial with the hope that answers will be provided.

Are taxpayers on the hook for the lawsuit?

Under the Legal Indemnification section of his agreement, s. 15 (b) states:

“Upon retirement the Board shall continue to provide legal indemnification in all matters presently before the courts or future matters arising as a result of Chief Tim Berthiaume’s responsibilities of the Amherstburg Police Service. These matters being directly associated to his position as the Chief of Police of the Amherstburg Police Service.”

Was Berthiaume eligible for stat pay?

His agreement with the Amherstburg Police Services Board, signed on April 15, 2014 by John Sutton, Wayne Hurst, Frank Cleminson, and Pauline Gemmell, effective until June 30, 2019 states:

Statutory Holidays
The Chief shall be allowed to work a statutory holiday and take another day off in lieu subject to the approval of the Board.”

Was it necessary for him to work stat holidays? And, if he did work them, why didn’t he just take a day off in lieu as required by the Agreement?

Did Berthiaume work any stat days during his 6-month paid hiatus in a defunct position?

The Amherstburg Police was abolished on December 31, 2018 and the Windsor Police contract became effective January 1, 2019. According to the article, Berthiaume advised he would not transition until after the expiry of his existing contract effective the end of June 2019.

Why would the Board agree that Berthiaume would “take another day off in lieu” while former Board members support his claim that he is owed money in lieu?

The Agreement states:

“Employment, 2.2, “The Parties agree that the salary and working conditions of this agreement shall be reviewed on an annual basis as per the provisions of the Police Services Act. In accordance with section 115(2) and 31)1)(d) of the Act it is the Board’s duty to annually determine the remuneration and working conditions taking the Chief’s submissions into account. This provision may be waived if remuneration and working conditions, by agreement of both parties, are agreed to for a period of more than one year.”

When Windsor Police was awarded the contract, did the Board review Berthiaume’s Agreement knowing the Amherstburg Police would cease to exist on December 31, 2018?

The article referred to former Board member Rozankovic who said a contract is a contract and the board was committed to paying Berthiaume until his expired at the end of June.

Was the Agreement in conflict with the Police Services Act?

Section 16 (a) of the Agreement states, “Any term or provision of this Agreement that is in conflict with the Police Services Act or any successor act or regulations thereunder is void and of no effect.”

The Police Services Act Reduction or abolition of police force

40 (1) A board may terminate the employment of a member of the police force for the purpose of abolishing the police force or reducing its size if the Commission consents and if the abolition or reduction does not contravene this Act.

Criteria for Commission’s consent

(2) The Commission shall consent to the termination of the employment of a member of the police force under subsection (1) only if,

(a)  the member and the board have made an agreement dealing with severance pay or agreed to submit the matter to arbitration; or

(b)  the Commission has made an order under subsection (3).

Order imposing arbitration

(3) If the member and the board do not make an agreement dealing with severance pay and do not agree to submit the matter to arbitration, the Commission, if it is of the opinion that it would be appropriate to permit the abolition of the police force or the reduction of its size, may order the member and the board to submit the matter to arbitration and may give any necessary directions in that connection.

What did OCPC decide?

In its last paragraph of the decision, OCPC consented to the abolition of the APS under section 40 of the PSA subject to the following conditions:

    1. Amherstburg must deliver to the Commission a signed copy of the contract with the City of Windsor which substantially implements the Proposal.
    2. The receipt by the Commission of written confirmation from the APSB that an agreement as to severance pay has been made with any member of the APS whose employment is terminated as a result of the abolition. Failing such an agreement, the APSB must provide written confirmation to the Commission that an agreement has been made with such members that any severance pay dispute will be referred to arbitration. If no such agreements are made within 90 days of today’s date the Commission will order that all remaining severance pay disputes will be referred to arbitration.

Was the matter mediated?

Section 3.1 of the agreement states, “In the event that the Chief and the Board are unable to agree to salary and benefit terms in subsequent years of this contract, either party shall have the right to refer the matter to a mediator selected jointly by the Chief and the Board. Should an agreement not be reached through the mediation process, either party may refer the matter to an independent arbitrator selected jointly by the Chief and the Board. Each party will bear their own costs of mediation and arbitration with the costs of the mediator and/or arbitrator being shared 25% for the Chief and 75% for the Board.

Why was Berthiaume’s contract not ended as a result of the abolition on December 31, 2018 pursuant to PSA s.40?