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Home My WebLink About2014-3683.Bateman et al.16-02-22 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#2014-3683, 2014-3684, 2014-3687 UNION#2014-0368-0204, 2014-0368-0205, 2014-0368-0208 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Bateman et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Janice Johnston Vice-Chair FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel CONFERENCE CALL February 17, 2016 - 2 - Decision [1] This case involves the discharge of five grievors. One of the grievors, William Young, signed Minutes of Settlement (“MOS”) on December 4, 2015, that resolved his grievance. The MOS contain a term stating that I retained jurisdiction to interpret and enforce the agreement. [2] Pursuant to the MOS, the Employer agreed to pay damages to the grievor. The employer agreed to pay the damages within sixty days of the date of the settlement. Also included in the MOS was a confidentiality clause that bound the parties to keep the contents of the MOS confidential. Although it is necessary to divulge some of the terms of the MOS (as I just did), as far as is possible I will keep the terms and conditions of the settlement confidential. [3] Therefore pursuant to the MOS, the grievor should have received the money on or before February 4, 2016. He did not receive payment. Shortly after February 4, counsel for the union emailed the Employer advising them that the money had not been paid and asking that it be paid immediately. A second email was sent last week as the money had still not been received by the grievor. As of the time of the conference call, the grievor had not yet been paid. [4] A teleconference call in this matter was held on February 17, 2016. The purpose of the call was to discuss the employer’s breach of the MOS. [5] Counsel for the union indicated that the grievor was extremely upset by the employer’s failure to meet its obligations under the MOS. As noted, the MOS contain a confidentiality clause. At the time that the MOS were signed, both counsel for the union and I stressed to the grievor the importance of maintaining confidentiality. The grievor is now questioning why he must abide by the terms of the MOS but the employer can breach them by failing to make payment to him in compliance with the time frame set out in the MOS. - 3 - [6] Union counsel argued that had the grievor been guilty of a breach of the MOS, particularly the confidentiality clause, the employer would have been asking me to order the grievor to pay back the money he was to receive under the MOS, or to order the grievor to pay damages. [7] In the circumstances, counsel for the union requested that I do the following: i) issue a written order indicating that the employer has breached the MOS; ii) order the employer to pay the grievor the amount he is owed forthwith; iii) order the employer to pay interest on the amount owed for the period of time it is in violation; iv) order the employer to pay to the grievor $1,000 for breaching the contract it made with the grievor. [8] Employer counsel acknowledged that the employer had “dropped the ball” in this case and did not deny that the payment to the grievor should have been made by February 4, 2016. He indicated that a cheque had been or would immediately be couriered to the grievor. Counsel did not object to the first three requests made by the union, but was opposed to the order requested in point number four. Counsel calculated the interest payment to be $7.78. [9] It was asserted by counsel for the employer, that although the payment was late, it was not due to bad faith or willful misconduct on the part of the employer. It was asserted that the breach did not cause the grievor any tangible damages. If there were any consequences, they were minimal and the breach was a technical one. [10] In response, counsel for the union disagreed with the assertion that the breach was merely technical. It was a breach of the MOS and we do not know why the employer did not pay in a timely fashion. No reason as to why it took more than - 4 - sixty days to pay was provided. We “dropped the ball” is simply not a sufficient response in counsel’s view. In addition, the payment of $7.78 in interest is inadequate to remedy the situation. Counsel indicated that he asked for a payment of $1,000 as that was the amount that the Board directed be paid by the grievor in O.P.S.E.U. v Ontario Ministry of the Attorney General - Young (2004) (Ont. G.S.B.) (the “Young Case”) for a breach of the confidentiality clause in the MOS. [11] In the Young case, at paragraph 55 in the award, VC Abramsky stressed the importance of settlement agreements at the GSB. She stated: There is no dispute between the parties regarding the importance of settlement agreements. The GSB has repeatedly emphasized the importance of settlement agreements to effective labour relations between the parties. As set forth in OPSEU (Landry-King) and Ministry of Community and Social Services, GSB No. 1593/84 (Knopf) at p. 8-9: The Board wishes to do everything possible to foster and honour settlements reached by the parties. Once settlements are achieved, parties must feel confident that they can rely upon them. Otherwise, there would be no incentive for the parties to even attempt to settle matters. ... In OPSEU (Union Grievance) and Ministry of Natural/Resources/Management Board of Cabinet, GSB No. 1526/91, 1294/92 (Kaplan) at p. 31, the Board referred to the [s]anctity of [s]ettlements”, stating that “it is absolutely essential that the Board give effect to final settlements reached by the parties.” [12] After concluding that the grievor had breached the confidentiality clause, VC Abramsky went on to say, “Confidentiality clauses, like all other terms of a settlement agreement, should have real meaning. Parties rely on such clauses in deciding whether or not to settle.” Therefore, VC Abramsky ordered Ms. Young to return the $1,000.00 paid to her under the settlement, on terms to be worked out between the parties. - 5 - [13] There is no dispute in this case that the employer did not make payment in accordance with the commitment made in the MOS. No reason other than an inadvertent error was given for this breach of the MOS. In my view, that is not an adequate reason for breaching the MOS. So what should the consequences be? The union has asked that I order the employer to pay in this case, what the grievor was ordered to pay in the Young case, namely $1,000. Although I do not want to downplay what I view as a serious matter, ordering the payment of $1,000 in this case seems a bit harsh to me. [14] The employer agreed to pay in sixty days. That should have been more than enough time, even given that the wheels of the government may turn slowly at times. In my view, if you agree to a time frame for certain actions, you are bound by that time frame. Neither counsel was aware of a case in which the union had taken the position it was now taking before me. Although union counsel asserted that the employer has missed the deadline for payment in the past, the union has not ever sought damages or compensation for breach of contract. Therefore as this appears to be the first time that a remedy has been sought, it seems appropriate to me to put the employer on notice that the next time it fails to pay in accordance with the agreed to MOS there could be consequences. Obviously the consequences will be dependent on the facts. [15] Accordingly, I hereby make the following orders: i) the employer has breached the MOS; ii) the employer shall pay the grievor the amount he is owed forthwith if it has not already done so; and iii) the employer shall pay interest on the amount owed for the period of time it is in violation of the MOS; - 6 - [16] This case shall proceed as scheduled on October 17, 2016. Dated at Toronto, Ontario this 22nd day of February 2016. Janice Johnston, Vice Chair