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HomeMy WebLinkAbout1990-2251.Toplin.91-06-04 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNOAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G 1Z8 TELEPHONE/TELEPHONE: (a 16) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 FACSIMILE/TELECOPIE : (a 16) 326-1396 2251/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU(Toplin)' Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: J. Samuels Vice-Chairperson P. Klym Member A. Merritt Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barrsiters & Solictors FOR THE J. Benedict EMPLOYER Manager Staff Relations and Compensation Ministry of Correctional Services HEARING April 15, 1991 2 The grievor was an unclassified employee at the Hamilton- Wentworth Detention Centre, serving as a correctional officer. She completed one contract period and commenced a second, when her employment was terminated by the Ministry. On October 12, 1990, she was informed by letter by Deputy Superintendent F. W. Morris that she was being released from her employment "due to your failing to meet the requirements of the position". She filed two grievances. The first, dated October 17, 1990, complained that the dismissal was "unjust, unreasonable and unfounded", and asked for reinstatement and a fair and reasonable opportunity to continue with her chosen career, as well as compensation. The second, dated November 7, 1990, complained of a failure to make reasonable provisions for her health and safety, and asked for such reasonable provisions to be made. At the commencement of our hearing, in his opening statement, counsel for the grievor explained that all of this was related to a virulent pattern of sexual harassment against the grievor, which management did little to discourage. He suggested that the Ministry could not properly release the grievor unless she had a fair opportunity to meet the requirements of the job. On the other hand, in his opening statement, the Ministry's representative suggested that the grievor was unsuitable for the position almost from the outset. He said that she had submitted a lengthy list of complaints during her employment, and these had been thoroughly investigated and found to be entirely unfounded. Most importantly, none of these complaints alleged sexual harassment. The Ministry then raised a preliminary objection—that these grievances had been settled. This award will deal with this preliminary objection. 3 The Ministry's evidence concerning the alleged settlement came from Ms. A. Pruchnicki, a grievance officer. She has been in this position for about eight months. She testified that there was a pre-hearing meeting with a mediator on March 5, 1991, which she attended. The Ministry representatives discussed a possible settlement with the grievor, the grievor's husband, and her Union representative, Mr. L. Yearwood. The Ministry offered to pay off the rest of the grievor's contract to December 31, 1990. Ms. Pruchnicki herself raised this possibility. The Ministry would pay 50¢ on the dollar, averaging the hours worked to 30 per week for the remainder of the contract. A letter of resignation would be substituted for the letter of termination on file. - The Union side left the room and returned in about ten minutes. Mr. Yearwood said "Go see what amount you can offer", because Ms. Pruchnicki had made it clear that she could not establish the sum. Ms. Pruchnicki felt that money was the only issue, and that the Union group agreed with the rest of the terms. Some time after this pre-hearing meeting, Ms. Pruchnicki called her superior and was told to offer $2300. She phoned Yearwood and gave him the figure. He said he would get in touch with the grievor and return the call. A day or so later, Yearwood called back to say that the money was satisfactory, and so was the letter of resignation, but the grievor had concerns about her record of employment, because she wanted to apply for other Ministry jobs. The grievor wanted the record destroyed. As well, the grievor had concerns about some recent correspondence. Ms. Pruchnicki replied that she was not sure about the record and correspondence, and would call her superior. She called her superior, who said that the record would stay for five years, but the correspondence could be removed from the file. 4 Pruchnicki relayed this to Yearwood, who was then to call the grievor to see what letters the grievor wanted removed from the file. A short while later, Yearwood called Pruchnicki to say that the grievor had concerns now about her unemployment insurance situation. A week later, Pruchnicki met Yearwood on another matter and asked him what was happening with the Toplin case. He said that he had not been able to get a hold of the grievor yet. And so matters remained until two weeks before our hearing, when Pruchnicki asked Yearwood about the Toplin case again and was told that the file was now in Mr. Ryder's hands. She called Ryder and was told that the Union was proceeding. This Board, without hearing the cross-examination of Ms. Pruchnicki, informed the parties that there was no settlement in this testimony. While it appeared to the Ministry that a number of the grievor's concerns had been met, at no time had all the details of a settlement been agreed by the parties. Ms. Pruchnicki said that, in her view, there was a settlement and the Ministry was simply waiting to see what letters the grievor wanted removed. But, even if this view of the discussions were correct, the grievor may have responded with a list which was unacceptable to the Ministry. The Ministry may have said that some items on the list were part of the "record" which the Ministry refused to destroy. Until all the terms were agreed in one package, the parties would have no settlement And they never reached the point of agreeing on all the terms of a settlement. Until such a point is reached, either party could change its mind about any of the items which may have seemed satisfactory at the outset. 5 Thus, we dismissed the preliminary objection and we turned our attention to a preliminary discussion of what was to come on the merits. Done at London, Ontario, this 4th day of June , 1991. '4; J. W. Samuels, Vice-Chairperson P. Klym, Meinber A. Merritt, Member