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HomeMy WebLinkAbout2000-0783.Dale et al.02-03-11 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0783/00, 1314/00,0883/01 UNION# 00A454, 00A516, 01 F523, 01F525, 01F526, 01F527 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Dale et al) Grievor -and- The Crown In Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFORE Randl H Abramsky Vice-Chair FOR THE GRIEVOR Nelson Roland Counsel Barnster & Solicitor FOR THE EMPLOYER Fateh Salim Counsel Legal Services Branch Management Board Secretariat HEARING February 27, 2002 2 AWARD Dunng the course of the heanng, a dIspute arose as to the admIssIbIlIty of eVIdence concermng 17 gnevances filed In 1996 whIch the partIes' settled In March of 1999 The Umon seeks to rely on the facts and CIrcumstances underlYIng those gnevances to support ItS allegatIOn that the actIOns taken by the Employer In the matters before thIS Board were based on antI-umon ammus The Employer obJected to the IntroductIOn of thIS eVIdence on the basIs that the matters were fully and finally settled. Facts The ImtIal gnevance before thIS Board, dated November 2, 2000 alleges that the Employer constructIvely dIsmIssed the gnevors from theIr Jobs, dIscnmInated agaInst them contrary to ArtIcle 3 of the collectIve agreement, unfairly dIscIplIned them and subJected them to defamatIOn of character by management because of theIr actIvItIes on behalf of the Umon. In an Award dated November 14 2001 I consolIdated five addItIOnal gnevances - one dated July 3 1998 as well as four from 2001 on the basIs that "the gnevances sought to be added by the Umon Involve the questIOn of whether the employer's actIOns toward Mr Dale were the result of the gnevor's umon actIvItIes" The Award contInues The allegatIOn IS that they are all "part and parcel" of the same course of conduct. As such, although the gnevances allege dIscreet matters, the Issue of the employer's motIve IS the same In each case Thus there IS a "questIOn of law or fact" In common, whIch satIsfies the GSB's rule regardIng consolIdatIOn. 3 As noted above at the heanng, a dIspute arose concernIng the admIssIbIlIty of eVIdence pertaInIng to 17 other gnevances filed by the gnevors between Apnl and November 1996 Those 17 gnevances were consolIdated and all allege that certaIn actIOns were taken agaInst the gnevors by the Employer based on theIr Umon actIvItIes The gnevances were heard by the GSB from Apnl 1997 untIl March 1999 and there were many days of testImony On March 12, 1999 the partIes settled all of these gnevances and entered Into Minutes of Settlement. The settlement dId not Include the outstandIng July 3 1998 gnevance, whIch also alleges dISCnmInatIOn and harassment based on Umon actIvIty The preamble of the Minutes of Settlement state that It IS In "full and final settlement of all matters In dIspute, wIthout preJudIce or precedent, and wIthout any admIssIOn of lIabIlIty or culpabIlIty of any of the partIes " Paragraph 5 of the Minutes of Settlement states as follows 5 All partIes to these Minutes of Settlement agree that all matters In dIspute between them raised In the gnevances have been resolved and no further actIOns respectIng these matters wIll be taken under the common law the collectIve agreement, statute or otherwIse Positions of the Parties 1 The Employer The Employer obJects to the Umon's attempt to Introduce and rely upon the facts and CIrcumstances relatIng to the 1996 gnevances because they were fully and finally settled. The Employer submIts that the Intent of the partIes, as eVIdenced by the wordIng of the 4 Minutes of Settlement, was to resolve all of the Issues raised by the 1996 gnevances and that no party was to rely on the allegatIOns or CIrcumstances surroundIng those gnevances at a future pOInt In tIme In support of thIS posItIOn, It cItes to Paragraph 5 of the Minutes of Settlement, and contends that It precludes the Umon from raiSIng these matters In a subsequent proceedIng. In ItS VIew Paragraph 5 prohIbItS the Umon not only from re- lItIgatIng these gnevances In another forum, but also from raiSIng and relYIng on the facts and CIrcumstances underlYIng those gnevances The Employer submIts that the wordIng of the Minutes of Settlement and the Intent of the partIes, as expressed In that agreement, control thIS dIspute and IS paramount to any case law of the Ontano Labour RelatIOns Board cIted by the Umon. The Employer further contends that because the 1998 gnevance eXIsted at the tIme of settlement, the Umon was well aware that, by settlIng the 1996 gnevances, It could not later rely upon those CIrcumstances to support the 1998 claim It submIts that the Umon knew that when It settled those gnevances, the matters were fully resolved and were not to be raised agaIn In the future In ItS VIew any nght the Umon may have had to rely on these matters was waived under the terms of the settlement. In support of ItS posItIOn, the Employer cItes to Knight v Indian Head School Division No 19 [1990] 1 S C.R. 653 (S C C ) and Re Marn~ood Lifecare Centre and Canadian Union of Public Employees (1997),62 L AC (4th) 1 (Bnggs) The Employer further contends that there are Important labour relatIOns pnncIples at stake In thIS matter specIfically the encouragement of settlements between the partIes and respectIng the finalIty of settlements The Employer submIts that the partIes to the 5 collectIve agreement, through the adoptIOn of the medIatIOn-arbItratIOn process for the resolutIOn of most gnevances, have recogmzed the Importance of tryIng to settle dIsputes and that the partIes have embraced the goal of settlement whenever possIble Further It submIts that once a settlement IS reached, the settlement IS final and bIndIng. In ItS vIew allowIng the Umon to proceed to adduce eVIdence about the 17 settled matters would undermIne the Employer's confidence In settlements and undermIne the entIre settlement process In support of thIS contentIOn, the Employer cItes to Re Canadian Union of Public Employees Local 207 and City of Sudbury (1965) 15 L.AC 403 (RevIlle) OPSEU (Union Grievance) and Ministry of Natural ResourcesManagement Board of Cabinet GSB No 1526/91 and 1294/92 (Kaplan, Vice-Chair) OPSEU (Pitirri) and Ministry of Correctional Services GSB No 1685/92 et al (Kaplan, Vice-Chair) The Employer contends that a balancIng of the competIng Interests IS reqUIred as set out In Re Hotel-Dieu Grace Hospital and Ontario Nurses Association (1997), 62 L AC (4th) 164 (M. PIcher) and that the balance favours ItS obJectIOn to the admIssIbIlIty of the eVIdence It pOInts out that the matters sought to be Introduced by the Umon are now over SIX years old and that the Employer had belIeved them to be resolved. To allow thIS eVIdence Into the record to support the gnevors' current claims, It submIts, would be hIghly preJudIcIal to It. In further support It cItes OLBEU (Gamble) and Liquor Control Board of Ontario GSB No 1635/96 (Gray Vice-Chair) 6 2. The Union The Umon asserts that It IS not attemptIng to re-lItIgate the 17 gnevances that were settled and It seeks no remedy In relatIOn to those matters Instead, It IS attemptIng to lead eVIdence of the Employer's past actIOns to establIsh a contInUIty of conduct IndIcatIve of antI-umon ammus The Umon submIts that the eVIdence IS relevant, probatIve and essentIal to ItS case It contends that a rulIng agaInst admIssIbIlIty would greatly Impact ItS abIlIty to present ItS case The Umon asserts that the nature of ItS allegatIOns In thIS case - that the Mimstry engaged In a pattern of conduct agaInst the gnevors based on antI-umon ammus - IS IdentIcal to an unfair labour practIce proceedIng before the Ontano Labour RelatIOns Board. AccordIngly It submIts that the Junsprudence of that Board should be followed. It notes that the OLRB has long held that although no remedy may be sought for unfair labour practIce matters that have been settled or wIthdrawn, eVIdence about them IS admIssIble for the lImIted purpose of establIshIng a pattern of unlawful actIvIty In support, the Umon cItes to Craftline Industries Limited [1977] OLRB Rep Apnl 246 Comstock Funeral Home Ltd [1981] OLRB Rep Dec 1755 Maplehurst Hospital Limited [1986] OLRB Rep Feb 247 and Royal Homes Limited [1992] OLRB Rep Feb 199 The Umon submIts that a settlement does not oblIterate the fact that certaIn events happened and because those events are relevant to the subsequent matters, whIch are currently before thIS Board, the earlIer events are admIssIble Into eVIdence The facts 7 surroundIng the 17 gnevances, the Umon argues, cast lIght on the Employer's later conduct whIch mIght otherwIse appear ambIguous The Umon argues that there IS nothIng unusual about the wordIng of the March 1999 settlement whIch would negate the Umon's abIlIty to rely on these matters to support ItS current claim It asserts that If the eVIdence IS barred, It wIll create a dISInCentIve to settle matters InvolVIng an ongOIng pattern of dISCnmInatIOn. It submIts that although the Umon hoped, at the tIme of settlement, that the dISCnmInatIOn would stop that dId not occur and new Instances arose requmng the filIng of new gnevances It contends that the settlement should not shIeld the Employer from ItS pnor actIOns and that the Employer should not be allowed to hIde behInd It to mask ItS hIStory of antI-umon conduct. The Umon contends that any Inconvemence to the Employer In havIng to defend these matters IS outweIghed by the Importance of the eVIdence to establIshIng a patter of antI-umon conduct. Decision There clearly are conflIctIng Interests at stake In determInIng whether eVIdence concernIng the 17 settled gnevances from 1996 should be admItted to support the Umon' s claim that there IS a pattern and practIce of dISCnmInatIOn agaInst the gnevors on the basIs of theIr Umon actIvIty The Umon claims that admIssIOn of the events whIch led to those gnevances IS cntIcal to ItS case, and IS reqUIred to put Into context the otherwIse ambIguous actIOns Involved In the gnevances presently before the Board. The Employer 8 claims that It should not now long after the fact and long after the matters were settled, be forced to relItIgate matters whIch were fully and finally resolved. The GSB has long recogmzed the cntIcal Importance of settlements and theIr enforcement. In OPSEU (Union Grievance) and Ministry of Natural ResourcesManagement Board of Cabinet GSB No 1526/91 1294/92 (Kaplan, Vice- Chair) the Board referred to the "[s]anctIty of [s]ettlements" concludIng at p 31 that "[I]t IS absolutely essentIal that the Board gIve effect to final settlements reached between the partIes" The Board cIted to Landly-King GSB No 1593/84 (Knopf, Vice-Chair) at pp 8-9 quoted at p 31 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 Unless there IS a compellIng reason why a settlement once obtaIned, cannot be honoured by the partIes, thIS Board should not even attempt to Interfere wIth the Settlement. Once a matter IS settled, the expectatIOn IS that the matter IS resolved and wIll not reappear In some dIfferent gUIse As the Board held In OPSEU (Pitirri) and MinistlY of Correctional Services supra at p 12 "With respect to those [gnevances] covered by the settlements, one need only observe that the partIes enter Into agreements of thIS kInd wIth the expectatIOn that theIr agreements wIll remaIn In effect and that the gnevances that have been resolved by theIr terms wIll not reappear In some dIfferent gUIse" Accord, Re Canadian Union of Public Employees Local 207 and City of Sudbury (1965), 15 L.A.C 403 (RevIlle) 9 Under the Junsprudence of the Ontano Labour RelatIOns Board, however cIted by the Umon, It IS clear that eVIdence concernIng settled or wIthdrawn complaInts may be "admItted for the lImIted purpose of establIshIng a pattern of unlawful actIvIty and not for the purpose of gaInIng redress for the alleged unlawful actIvIty Craftline Industries Limited, [1977] OLRB Rep Apnl 246 In Comstock Funeral Home Ltd [1981] OLRB Rep Dec 1755 the Board explaIned the ratIOnale of that holdIng as follows, at p 1758 The settlement of a complaInt contInues to be advantageous to a party for all of the reasons one would normally contemplate settlement. But a party IS not entItled to thInk that by the settlement of a partIcular complaInt, It thereby oblIterates the past, and can act thereafter wIth relatIve Impumty Rather havIng aVOIded the tIme, expense and nsks of lItIgatIOn by the settlIng of a complaInt, a party must recogmze the possIbIlIty that future conduct of a controversIal kInd can force It to lItIgate ItS entIre pattern of conduct to that pOInt. ThIS IS especIally so when ItS subsequent conduct IS as predIctably Inflammatory as In the present case, and occurs wIthIn days of the precedIng settlement. In the Comstock case, the employer took a number of adverse actIOns agaInst employees ImmedIately after certIficatIOn of the umon whIch were the subJect of unfair labour practIce complaInts On the second day of the heanng, the partIes were able to reach a settlement on all of the matters In dIspute and all of the complaInts before the Board were wIthdrawn. The Board concluded "From thIS development It must have appeared to the complaInant that the respondent had finally accepted the relatIOnshIp and was prepared to get on wIth the amIcable negotIatIOn of a collectIve agreement." (p 1757) Three days after thIS settlement, however the employer took a number of new adverse actIOns and "not a word was said to the complaInant In the settlement dIscussIOns three days before In regard to these pendIng new developments" (p 1757) At the heanng on these new Issues, the complaInant claimed the nght to adduce eVIdence on all of the 10 allegatIOns contaIned In Its pnor complaInts, on the sole basIs that they were relevant In demonstratIng through a pattern of conduct the antI-umon ammus necessary to sustaIn the present complaInt. It was not seekIng any form of relIef wIth respect to the pnor complaInts As noted above, the Board allowed the complaInant to adduce thIS eVIdence, concludIng that If the matters whIch were settled "are arguably relevant to eIther support or defend a fresh complaInt anSIng from subsequent developments, the events themselves contInue to be provable and admIssIble In eVIdence "(p 1757) In my VIew the ratIOnale of the Board In Comstock does not apply to the Instant case, at least as It pertaIns to the July 1998 gnevance The reason It does not apply IS because at the tIme the 1996 gnevances were settled In March of 1999 the July 3 1998 gnevance had already been filed. It was not a "fresh complaInt" anSIng after the settlement or a "subsequent development." At the tIme of the settlement, It was an eXIstIng and ongOIng gnevance Thus, the underlYIng premIse of the Board's conclusIOn In Comstock - that future conduct of a controversIal kInd can force an employer to lItIgate ItS entIre pattern of conduct to that pOInt - does not apply when the conduct complaIned of eXIsts at the tIme of settlement, as It dId here In relatIOn to the 1998 gnevance Further the partIes to the settlement of a gnevance may Waive the nght to raise or rely upon the matters whIch led to a gnevance In the future The Employer submIts that that IS exactly what the partIes dId In paragraph 5 of the Minutes of Settlement, whIch states 11 5 All partIes to these Minutes of Settlement agree that all matters In dIspute between them raised In the gnevances have been resolved and no further actIOns respectIng these matters wIll be taken under the common law the collectIve agreement, statute or otherwIse ThIS paragraph may be Interpreted broadly to hold that "further actIOns respectIng these matters" Includes raiSIng them to support the allegatIOn of antI-umon ammus In the present gnevances It may also be Interpreted narrowly to mean that no further Independent claims or actIOns on these matters would be taken. Under the specIfic facts of thIS case, I conclude that the broader InterpretatIOn IS what the partIes' Intended. In March of 1999 after spendIng many days lItIgatIng these 17 gnevances over a penod of two years, the partIes fully resolved these matters and It makes lIttle sense to presume that the partIes dId not Intend to preclude theIr use to support the eXIstIng 1998 gnevance By consentIng to a "full and final" settlement and agreeIng that "no further actIOns respectIng these matters wIll be taken " the Umon cannot now rely on those settled matters to support a gnevance that eXIsted at the tIme these matters were settled. There IS no eVIdence that anythIng was said to the employer to the effect that, despIte the settlement, the facts underlYIng the settled gnevances would be used to establIsh antI-umon ammus In relatIOn to the 1998 gnevance Indeed, It would be tantamount to bad faith to settle a matter but plan to rely on the facts whIch underlIe It to support an eXIstIng gnevance Nor as noted above, does the ratIOnale of Comstock support that VIew Under these facts, I cannot presume that that was the partIes' Intent when It entered Into paragraph 5 AccordIngly I conclude that the broader InterpretatIOn 12 of paragraph 5 - whIch precludes a party from raiSIng and relYIng on these matters agaIn - was Intended by the partIes The Umon, at the tIme of the settlement, could have reserved the nght to rely on these 17 events to support the 1998 gnevance but dId not do so As stated In Re MarnJ1,ood Lifecare Centre and Canadian Union of Public Employees, Local 2225-06 supra at p 6 When partIes enter Into negotIatIOns or medIatIOn, It IS open to each to establIsh ground rules or caveats regardIng any number of matters However thIS dId not occur In thIS matter The Issue before me mIght well be dIfferent If that were the case By not dOIng so the Umon cannot now rely upon those settled matters to support the 1998 gnevance, whIch eXIsted at the tIme of the settlement. The Issue stIll remaIns, however whether the settled 1996 gnevances may be used to support the remaInIng November 2000 and 2001 gnevances Although they Involve matters whIch arose after the settlement (and thus the ratIOnale of Comstock would arguably apply) I conclude that the eVIdence should not be admItted. FIrst, the complaInts that arose In 1996 arose more than four years before the November 2000 gnevance The sItuatIOn In Comstock was vastly dIfferent. In that case the events whIch gave nse to new unfair labour practIce complaInts occurred three days after the earlIer complaInts had been settled and wIthIn a few months of theIr occurrence Under thIS scenano the Board ruled that the respondent could not hIde behInd the settlement and that the respondent "must recogmze the possIbIlIty that future conduct of a controversIal 13 kInd can force It to lItIgate Its entIre pattern of conduct to that pOInt." ThIS was "especIally so when ItS subsequent conduct IS as predIctably Inflammatory as In the present case, and occurs wIthIn days of the precedIng settlement." The same IS sImply not true after the passage of so many years In Maplehurst Hospital Limited supra, the OLRB allowed the applIcant to lead eVIdence In relatIOn to events OCCUrrIng pnor to an earlIer wIthdrawal of a certIficatIOn request, In accordance wIth the reasomng of Comstock, supra Although the exact dates that these earlIer events occurred IS not specIfically stated In the decIsIOn, the settlement was dated November 22, 1985 The Board's decIsIOn In Maplehurst Hospital was dated February 24 1986 AccordIngly It seems lIkely that the earlIer events took place wIthIn months of the subsequent events, certaInly not years later In none of the cases cIted by the Umon IS there a gap of four years between events, or even a gap of substantIal duratIOn. GIven that the eVIdence sought to be lead IS to establIsh a pattern of unlawful conduct, the passage of so much tIme leads me to conclude that the ratIOnale of Comstock should not be followed In these partIcular cIrcumstances There may well be other cases where a dIfferent result would be reached, but under these specIfic facts, I conclude that eVIdence concermng the 17 settled gnevances from 1996 should not be admItted. The passage of so much tIme also reqUIres consIderatIOn of a number of other factors In decIdIng the admIssIbIlIty of eVIdence In thIS regard, the decIsIOn In Re Hotel- 14 Dieu Grace Hospital and Ontario Nurses Association supra, provIdes useful gUIdance The gnevor In that case, In support of hIS claim of racIal dISCnmInatIOn, alleged that the Employer had engaged In a pattern of racIal dISCnmInatIOn over a substantIal penod of years, IncludIng IncIdents whIch arose SIX years before the gnevance was filed. The Employer obJected to the admIssIOn of thIS eVIdence, contendIng that the eVIdence should be lImIted to the mne-day penod set out for the filIng of gnevances under the collectIve agreement, or In the alternatIve, to the SIX month penod before the gnevance as set out In the Ontano Human Rights Code The Board ruled that "It IS Important In thIS case to stnke a fair balance between the concerns of both partIes" and consIdered that "the prospect of opemng the heanng to a full SIX years of IncIdents and the volumInous eVIdence that would result, gIves us senous pause, both from an eqUItable and a procedural standpoInt." (p 2) The Board also expressed some "sympathy for the concerns of the Umon" statIng that "[w]e apprecIate that when the success of a gnevance rests on shoWIng a pattern of dISCnmInatIOn whIch would establIsh the tolerance, If not encouragement, of a pOIsoned atmosphere In the workplace, some scope must be allowed for eVIdence whIch would pre- date the mne-day lImItatIOn penod contemplated In the collectIve agreement" although not the SIX years sought by the Umon. ( p 2) Instead, the Board dIrected that "partIculars and eVIdence be lImIted to a penod commencIng three years penod to the date the gnevance was filed " 15 The same kInd of balancIng of Interests IS appropnate here The events of 1996 occurred more than four years before the November 2000 gnevance before me and the probatIve value of that eVIdence, gIven the passage of so many years, IS relatIvely lImIted. On the other hand, the prospect of opemng thIS heanng to the 17 matters whIch arose In 1996 and were settled In 1999 after a lengthy hearing on those same issues gIves thIS Board "senous pause, both from an eqUItable and a procedural standpoInt." Procedurally It would very sIgmficantly lengthen the heanng. From an eqUItable standpoInt, requmng the Employer who belIeved that these 17 matters were fully and finally settled as of March 1999 to re-defend these matters at thIS late date would be IneqUItable and preJudIcIal ConsIdenng the competIng Interests Involved, the balance of Interests favours not admIttIng the eVIdence concermng the 1996 settled gnevances I also note that the Board In Hotel-Dieu Grace Hospital found It Inappropnate to admIt eVIdence concermng the events whIch gave nse to the complaInt of another employee, "to the extent that that matter IncludIng a compamon gnevance filed by the Umon, was resolved on a wIthout preJudIce basIs" (p 3) The Board stated that "[w]e must have senous pause before proceedIng down a road whIch mIght Involve us makIng adverse findIngs agaInst the employer In respect of ItS treatment of another employee when that very Issue has been qUIeted by a mutual settlement." (p 2) Although the settled matters In thIS case concern the gnevors rather than another employee, the same concerns are present In thIS case 16 AccordIngly under the specIfic facts of thIS case, and for all of the reasons set forth above I sustaIn the Employer's obJectIOn to the admIssIOn of eVIdence concermng the facts and CIrcumstances surroundIng the 17 gnevances whIch arose In 1996 and whIch were settled In March of 1999 Dated at Toronto thIS 11th day of March, 2002 I RandI H. Abramsky Vice-Chalf