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Home My WebLink About2012-0173.Grievor.15-12-09 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-0173 UNION#12-14 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Grievor) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Richard M. Brown Vice-Chair FOR THE UNION Fred Ho Canadian Union of Public Employees - Local 1750 Counsel FOR THE EMPLOYER Eric Kupka Workplace Safety and Insurance Board Counsel HEARING October 16, 2015 - 2 - Decision [1] The question to be decided is whether the parties reached a binding oral settlement of all matters in dispute. I [2] The contested matters include: (1) the compensation owing to the grievor as a result of my decision, dated January 17, 2014, allowing one grievance relating to a two- day suspension received by the grievor and another relating to her termination; (2) issues relating to the grievor’s placement post-reinstatement; and (3) issues raised in other grievances relating primarily to alleged harassment by one of the grievor’s supervisors. [3] Three days were devoted to the mediation of these matters: September 5, 2014 and May 5 and 15, 2015. There were also extensive settlement discussions directly between the parties on other dates. [4] The employer contends a binding settlement pertaining to all issues in dispute was reached during the final day of mediation even though no written agreement was ever signed. Alleging three issues remained unresolved, the union contends there was no settlement. [5] It is common ground that many issues were tentatively resolved during the course of mediation and direct dealings between the parties, on the implicit understanding these issues would remain alive if all issues were not settled. I will refrain from describing the matters tentatively settled in order to safeguard both the identity of the grievor and the parties shared interest in preserving the confidentiality of settlement discussions. [6] The three issues alleged by the union to be outstanding are: (1) the number of attendance credits to be restored to the grievor in relation to the period when her harassment complaint was under investigation; (2) the amount to be paid to the grievor as reimbursement for travel expenses incurred in order to work for another employer - 3 - during the period between her termination and reinstatement; and (3) the reimbursement of medical expenses incurred by the grievor during the same period. [7] The issue about attendance credits relates to a period between May and November of 2011. After the grievor left work in February 2011, she was paid by drawing on attendance credits for the first 40 days and thereafter she received a combination of STD benefits and a top-up drawn from attendance credits. After the employer decided to investigate her harassment complaint, she was placed on paid leave not funded by any attendance credits. She was on paid leave from May 25 to November 17. This period of paid leave was retroactively converted to unpaid leave, funded by attendance credits, after the employer determined her complaint was unfounded. [8] The issue of attendance credits was the subject of direct discussions between the parties before the last mediation sessions in May of 2015. They fashioned a resolution obliging the employer “to restore all attendance credits taken from the grievor in respect of the period from May to November of 2011 when the grievor had originally been on paid leave of absence.” [9] The other two issues were addressed during the mediation sessions. In relation to medical expenses, the union proposed the grievor be reimbursed for all expenditures. The employer approved this proposal subject to the production of receipts. The union acquiesced in the request for receipts. [10] In relation to travel, the union proposed the grievor be reimbursed for out-of- pocket expenses and receive a mileage allowance. Based on the principle that the grievor should be made whole, the employer approved this proposal, also subject to the production of receipts for expenses. The union again acquiesced in the request for receipts. [11] All settlement discussions described above transpired before mid-afternoon on the third day of mediation. My involvement as a mediator ended at that point. [12] The union then prepared a draft memorandum of settlement. In relation to travel expenses incurred to work for another employer, the union proposed the amount - 4 - payable be “grossed up” to ensure the grievor fully recovered her out-of-pocket expenses in the event she was obliged to pay tax on the amount received. In relation to the restoration of attendance credits, in addition to the credits used retroactively for the period originally treated as paid leave, the union proposed the grievor be reimbursed for attendance credits used to top-up STD benefits in the interval between the employer’s decision to investigate her complaint and May 25 when her paid leave began. Not knowing the date of the employer’s decision, the union suggested a start date of May 1. [13] The union delivered its draft directly to the employer and the employer responded directly to the union. (I was not involved as mediator at this stage.) The employer suggested the start date for restoration of attendance credits should be May 25 when the grievor began a period of leave that was originally treated as paid and later converted to unpaid. The employer also questioned whether a gross-up of travel expenses was necessary to ensure the grievor was made whole for out-of-pocket expenditures, suggesting a reimbursement of expenses would not be taxable. The employer also inquired whether the grievor would be willing to submit a claim for medical expenses to the insurer, on the understanding the employer would reimburse any expenses not paid by the insurer. There had been no previous discussion of submitting a claim to the insurer. [14] The union then announced that the grievor no longer wished to engage in settlement discussions. I was advised of this development at the end of the day. [15] The employer subsequently advised the union that it was willing to accept the union’s position in relation to attendance credits, travel expenses and medical expenses. The grievor was no longer interested in a settlement on these terms. II [16] When grievances are settled, the terms of the settlement are typically reduced to writing and signed by representatives of both parties. Nonetheless, a binding settlement can exist even though the parties contemplated a signed memorandum of settlement that never materialized. Where a complete oral agreement has been reached on all - 5 - issues in dispute, there is an enforceable settlement, notwithstanding either party’s refusal to execute a written agreement embodying the agreed terms. On the other hand, where an anticipated written agreement is expected to address points not yet agreed upon and requiring further negotiation, there is no binding settlement until those points are resolved in writing or otherwise. See Oakville Association for the Mentally Retarded and Ontario Public Service Employees Union, [1993] O.L.A.A. No. 635 (Samuels); Sudbury District Roman Catholic Separate School Board and Ontario English Catholic Teachers Assoc. (1997), 61 L.A.C. (4th) 485 (Kaplan); and Ministry of Community and Social Services and Ontario Public Service Employees Union, [2013] CanLII 57002 (Dissanayake). [17] The central question in this case is whether the parties reached a complete oral agreement on all points in dispute. In my view, such an agreement had been concluded by mid-afternoon on the third day of mediation. All issues had been extensively canvassed including the three now in contention. The issue of attendance credits had been resolved, through direct communications between the parties, on the basis that the employer would restore credits relating to the period of leave originally treated as paid and then retroactively treated as unpaid. The issue of medical expenses had been resolved on the basis the employer would reimburse the grievor subject only to the production of receipts. The issue of travel expenses had been resolved on the basis the employer would make the grievor whole, subject only to the production of receipts. As employer counsel conceded, the make whole principle would oblige the employer to assume the burden of any taxes payable by the grievor in the event any such taxes are assessed as a result of the reimbursement of expenses. [18] All that remained by mid-afternoon on the last day of mediation was to reduce the agreement to writing and sign the resulting document. Even though this process was not completed, there is a binding settlement. - 6 - Neither party is at liberty to repudiate it because of second thoughts occurring after an oral agreement had been reached. Both sides must abide by the terms of the deal they negotiated. Dated at Toronto, Ontario this 9th day of December 2015. Richard M. Brown, Vice Chair