HomeMy WebLinkAbout1989-1495.Grinius.92-07-23 ONTAPIIO EMPLOYES DE ~,A CO, URONNL
~' CROWN EMPLOYEES DE L ONTA,qlO ~ '
GRIEVANCE C,OMMISSION DE
" SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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L495/89, 1357/90, 1409/90,
Z567/90, Z568/90
IN THE MATTER OF AN ARBITRATION
Un~er
THE CROWN EMPAOYEES COLLECTIVE ~ARGAINiNG ACT
Before
THE GRIEVANCE SETTLemENT BOARD
BETWEEN
.OPSEU'~Grinius)
~rievor
The Crown in Right of Ontario
(Ministry of citizenship)
Employer
BEFORE: B. Fisher Vice-Chairperson
G. Majesky Member
D.. Montrose Member
FOR THE R. Wells
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE J. Knight
EMPLOYER Counsel
Fraser & Beatty
Barristers & Solicitors
~EARING May 22, 1992
GRiNIUS
INTERIM DECISION
This is a discharge case. in the first interim decision the Board decided that
there was a culminating incident which would permit the Ministry to review the Griever's record.
In this decision we will decide what effect a.previous settlement agreement
has on the determination of the Greivor's record. ~
.: On May 4, 1989, the parties entered into a written settlement agreement.
regarding certain outstanding grievances and related items. The terms of the settlement were as
follows:
Propesal to resolve grlevaaoas of Klavas Grinias dated O~ober 13, 1988; letter of -;
discipline from Gosbulak; March 7, I989. disciplinary action w~hoot ~ust pause composer
training; grievances of suspension withoM Just cause dated AI)ril 5, 1989; withdrawal of
request for overtime January 30 - Merck 31, 1989.
The employer agrees to set goals and objectives for a ~riod of one year, both for
perlormance and conduct, which will be musically discussed. The employer also agrees to
put aside, to remain on held, not 1o be used for disciplinary or relereece purposes, for a
period of one year, the correspeudence as ideaflf}ed in 'List of Leffers lad Memorandum'
as per attached. Appraisals will be conducted by management quarterly or as requested.
If, at the end of one year, tke employee's pmeormance is considered to be satisfactory thee
said correst~ndence will be destroyed. If, kowever, the performance is eot satisfactory,
thee said correspondence will be re-activated.
These goals and objectives will be set within five working days of the signing of this
agreement. Al which lime all grievances referred to above, will be withdrawn in writing.
Dated May 4, 1989 ~"'~
Pursuant* to ,~hat agreement the part/es agreed on specific goals and.
objectives. These are set out in the ~ree page document attached to this decision. These goals
and obiectives were signed off on May 9, 1992, by Ms. Ann Faraway for the Ministry and by' the
Greivor. It should be noted that Ms. Faraway was not a party to the May 4, 1989, document nor
was she Involved in the negotiations leading up to the signing of that agreement.
The parties have agreed on the following facts:
~ 1, At tile time tile seUlement documents were signed, no one coesidered the Impact
tbnt a leave el absence would hove 01~ the agr~laent, l~T WiS tim pe~Sibitity
that the Griever would be on a leave of abseltce even discossed.
2. The tiTst time the impact tkata Isave of absence would keve oa tko setliement
wes d(scesf, ed was shortly before tl~ Grfevof went el leave d abseoce io
October, 1989. At tk&l point in time the Union's position wis that the term 'one
· yea~' meant 12 calendar-months, so that the period in which tile Griever's .:
previous record coold nM be referred to would end ia May, 1996. The Ministry
took the position that 'one year' meant one year of work with the Ministry so that
the period was suspended for the time the G~eivor was off leave of abseoce.
Subsequent to thd Griever's return from leave of absence, each party switched
their position.
The issue then becomes what effect the leave of absence has on the
settlement. There are four possible answers: ~-,;
3
(a) 'One year' means twelve months, thus tko period expired in May of 1990, while
the Grelvor was on leave el absence. This would mean that the ~rtL~ intended
that tko Groivor's wo~k could be reviewed eveu ii be didn't work for tko Ministry
for one year. Tkls Is contrary to tko whefa intent and purpos~ id tko settlement
and tberelore we reject Skis as an appropriate interpretatlea~ Ii fact the Ministry
counsel dhl not urge as to iuterpret the document in that way.
"Oho y~' a~e.~eu twelve months ef Miutstry wt)rk, wkicb a~ not be served
consecutively. Therefore the leave et absence simply suspends the running ef
the one year so that upon tke Griever's return il Apr]l of 1990 ke is, in effect,
in the uLTra month el ~]~e one year period.
(c) 'Oeo year' means twelve months el Ministry work, which do ~et necessarily have
to be consecutive months, but any Interruption mast be of
tkat tko g~)al$ and objecllves re~erred to Je the celt]omens agreement are still
relevant..~ review e~ tko goals iud objectives logelbey wifb
evidence ~d Ann Faraway ind~cates that some o/the perf~mwnco goalv, eot,~bl¥ ·
ones fled to specific grogrammes, had to be performed within a set time frame
as the programmes were of n {imifed duration. Specifically if wis known in May,
1989, tbut the NNSP programme, referred
4 and 5, wit due to expire on March 31, 1991. Similarly as of May, 1989,
was knewtl that OHESP, referred to in paTagruph 4 of the Performance Goals, wes
to finish by March 31, 1991. As the Griever returned to work ou April 30, 1990,
he still could have completed the remaining seven months o~ his one year period
wet% w{tl&tn tko time irnme ie which the 9<)ets and objectives were relevant.
~..,
(d) As the pe~ties did not contemplate u leave of absence at the time they signed the
settlement ii is clear that the whole basis et the so, lament was premised Qn the
cQatemplntlon tNet {he Grievor wGu{d tie OOlKluuously ampl~l wKk INs
for tke twelve mOlrik I)erled oodieg May, lC)90. As tMt, d~ tim in fac~ happen,
the se4~iemeld should simply be void~ rntker 1kan Irylag 1o imply terms 1o
agreement wkicb the plrlles aeve~ contemplated.
In order to adoPt either interpretation (b) or (c) this Board would have to
imply a term into the settSement agreement. Arbitrators have been quite reluctant to imply terms
into a collective agreement. Palmer, in Collective Agreement Arbitration in Canada, 3rd edition,
refers to this issue at page 128 as follows:
'The implication id a clause ldo i collective
~si~ led on~ dodo g~de~ the cl~r~ ~
in County of Athabasca No. 12 and Alberta Teachers Association, 19 LAC
(2d) 1, the law of,implied terms is extensively reviewed. At pages $ - 8 of the decision the
following comments were made:
The above described rilereecos Indicate that thane are three II}lids Of implied
te~ms, namely:
1. Terms Implied by taw.
2. Terms implied ~ cutom.
Terms implied ia fact.
See 9 Hals, 4th ed., p. 225, pare. 35'~, and Treitel, Law of Contract_, 4th ed., p. 128.
A term is said to be ]mplied by law 'well it is added to · contract lo promote
lalr~lass, justice tied equ~ aver tkoltgh it Is nM (:lair INit INa parties woailt b~a agreed
to include the semi in the colttrict. Tarms implied by )aw a~a not therefore based ga INa
presumed lfllaetioe of tka parties, but dap~ld on coastdaratioas gl public policy.
5
A term is said to be implied by custom when a coatract is silent on a padicelar
point and it cas be shows tknt custom or Ill, ge normally governs tko particalar type of
ccolract in question. Terms Implied by centare are based on the presamed inteation of the
parties, e.g., where sack custom o! osage e~sil~s, ~ is l~tesl, ll~d that tko paftie~ dM not
intend to express the entire coatract bet~m~ee them, bat intead~ to contract in accordalce
wink the estabilsked custom or asege.
A term is ~ald to be tmpll~ is fact wkea as existence is derived fram the facts
and circumdaaces surrcoading a pa~ticlllar transaction. A term wilt be implied II fact
from the language el the contract and the cifcemst~aces aa~f whLck it w~&s at.fed
it con be coscleded tklt the parties must kava iatended the provision il qees~ioe. A term
will be implied in fact ~f it is uecessary to give besiless efficacy to the traevactioo aid
prevent sock faillre 04 consideration as caeect kava been withil tile coateelplation of
either side. Terms implied il fact are tkerofore based ga the presomed tateetioe of the
.parties.
From the above, h can be seen that terms implied by castnm led terms implied
ia fact are based ge the presumed intention of the parties add that tko Implication of these
terms is a pa~t of the function of interpreting a contract, and as sick, it is the opiuion of
tkin arbitration board tkat it does keve jurisdtofiol to resohte e g~ievnlce wink respect to
terms implied by clStol o~ terms implied II fact.
it is the farther opinion of this arbitration board that it doe~ sol kava juriedict~oo
to deal wink a grievance based ee a term implied by law.
it was saggested that as a matter of practica and policy it would be unwise fo~
an arbitration board to imply terms into n collective bargaining agreement, it was fartkef
Saggested tknt to do so would sertoasly comp&icate the aege41ation 04 a t~ct~te
agreement becaase Jack negotiations are conducted on the basis of beth parties proposing
many more terms than the terms that and tip ia the agreement, and as sack, tile parttes
could no longer rely ge the absence of at express ilfovtsion to preclade a grievance ia
respect of tkat pa~ttcoJer sshject-matter.
T'ae legal principles governing the implicet~on 04 a term Taro a contract ate very
strict and aa arbitration beard, like the Cos~ must be extremely earefal as to kow and -.
wbeig it JmpJJe~ n term Jato n collective ilargnJniag agreemeaL it a term is ratsed by one
of the parties during negotiations, bat there is ag agreement with res~x~ct to the same, sack
a provision Calleof become aa impJJed term within the legigl lest dJncigssed Jig ]ssee No. 3
hereof. It is only those terms that are eof raised during nego4iations, bid wkich had they
been ~igisad defile igege~JalJoas, bofb pa~tJes woigld keve ]nstaldiaeogs~ ~xpre's~etl~ their
agreement therewith, that Ire capable 04 being implied into a contract.
The legal principles governing the conditions and circum~tauces under which e
lerm in fa~ wi~ be implied are well established.
~f Relearn v. Unio~ Mtg. C~. (flamtb~om) Ltd. ~ al., [1918] 1 ~B. 592 it p.
605, ScruEoe, ~. said:
A term can on~ ~ implied if fl is necessa~ in tke business sense to
conl~dent~ be ~id that il nt the ttme the co~ra~ was ~in6 eeg~iated
th~ would b~k bare replied, 'of course, so and so will kappas; we
6
In Skirlaw v. Southern Foundries (19261, Ltd., (1939] 2 ILB. 206 at p. 227,
Maci(inNoN, L.J., sa/d:
· Primal I~cie tbaL! which ie any' contract is lei1 Io be impijed aL~U J~eed
so tklt, if, while the parties were makiug theil' bargain, aN officious
bystander were to sagged some express provision for it iN their
agreement, they weald tedily suppress him with a common 'Oh, of
coursol"
Ia Trollope & Co(fa Lid. v. North Weft Metropolilan Regional Hospital Board,
[1973] 2 All E.R. 266 at p. 268, Lord Pearson said:
Aa unexpressed term con be implied if and ouly II tile colrt finds tbat
the parties must ~ve lateoded that term to IorJ~ part ed their coa~ract:
it is no( enough for the coNrt to find that such aL term would have buell
adopted by tho parties as reasoner,lo men if it had been suggested to
them: it must bare been · term that went without soyilg, · term
_iecessan/to give business efficacy to the contract, a term, although
tacit, formed part d tko contract whicb the parties made for
tkemsulves. ~!
Fridman, Law o~ Contract ia CanadaL, states as follows, at pp. 258-6, eemely:
Iff dtie~'l~JNlng lbo iatentioo o! the p,~rfies, a'dontiOl~ most ~
~ to the express terms d tko co~ra~ tn order to ~ w~ber the
saggest~ implication Is n~e~ es weft as reasonable and f~s in
wflb wkat hes clest~ ~n agr~d upon, and the preci~ l~ure ~
wh~ ff aa~hing, abeam ~ implied ....
Qu~e o~[oes~ tkis ~s a deti~e matter ~ h~ fa ~
d~ermia~ ~ r~eree~ to all tko circum~anfls ~ a given
one tb~ is reasonable, i~sa~, ca~ble ~ exa~ formll~ion, and -:
tb~
in this case it cannot be said with confidence that had the matter been
raised in May of 1989 that the part[es easily would have agreed to an interpretation along the lines
of (bi or (c) as set out above. This is evidenced by the fact that when the issue.of the leave of
absence did in fact come up, the parties each took opposite positions to trinse taken by them at
· this tlearJng. The more likely scenario woukl h~e been that the parties would have attempted to
resolve the issue, faiJing which there would not have been a settlement at all. Presumably the
Grtevor would then have proceeded with Ms various grievances.
As stated in the quote from ~County of Athabasca: ....
"e term will be implied in fad if it is ~__~__*_~*_ry to give besln~ss efficiency to the
the coatemplation 04 the ~dies.' (Ellpkalis added.)
Normally In interpreting a settlement agreement we should be cognizant of
the fact that above ali the parties had a deal and we should be loath to-do anything that would
undermine or undo that deal.- However, that does not mean that the arbitrator should simply
rewrite the settlement when an unexpected event occurs which neither party contemplated when
the settlement was signed. In addition, where the settlement can be undone without prejudice to
the position of either party, it may be more appropriate to void the settlement than to rewrite the
deal.
In this case neither party would be unduly prejudiced if the settlement was
voided. The Grievor is free to pursue his grievances and the Ministry is free to defend their
actions in disciplining the Grlevor.
In summary we find as follows:
l! the issue of a leave of absence had been raised on May 4, 1989, It is not
clear whether the parties ~puld have chosen either of interpretation (b) or
(c), thus this Board should not imply such a term.
,
(b) it may well have been that if the leave of absence issue was raised on May
4, 1989, no settlement would have been achieved.
The padies can be put back to the position they would have been if the May
4, i989, settlement had not been reached and this can be done so without
prejudice to either parties'
The 8oard therefore orders as follows:
(a) The settlement agreement of May 4th and 9th, 1989, is hereby declared to
be null and void.
(b) Ali of the grievances referred to in the Minutes of Settlement are deemed
not to be withdrawn and deemed to be properly before the Grievance
Settlement Board regardless of any timeliness issues. This panel is to be
seized of all of these grievances.
(c) if the Grievor could have, as of May 4, 1989, filed any additional grievances
in relation to the letters attached to the settlement agreement, but did not
do because of the settlem~.t, he shall be free to file such grievances within
20 days of the release date of this award. The filing of the grievance(s) will
P
be done by way of a letter from Union counsel to Ministry counsel, with a
copy to the Grievance Settlement Board. Al! steps in the grievance
procedure prior to arbitration are to be dispensed with. This panel of the
Board shall be seized of all those grievances.
Dated the 23rd day Of July, 1992
r - Vice Chair
"I Dissent" (dissent to follow)
c. Ma'je~ky -.Union Nominee
'--~: Mon~. Employer Nominee