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HomeMy WebLinkAbout2002-0507.East.04-08-23 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-0507 UNION# OLB 182/02 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (East) Grievor - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Owen V Gray Vice-Chair FOR THE UNION Craig Flood KoskIe Minsky LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Alan Freedman Heenan BlaIkIe LLP BarrIsters and SOlICItorS HEARING June 28 2004 2 Reasons for DeCISIon [1] The Issue m thIS proceedmg was whether negotIatIOns m whIch the partIes engaged m May and June of 2003 resulted m a bmdmg agreement that the gnevor would resIgn on certam terms After consIdermg the agreed upon facts and the submIssIOns of counsel, I concluded that the partIes had not reached agreement A decIsIOn to that effect, wIth reasons to follow, was Issued on July 2, 2004 These are the reasons for that decIsIOn. Facts [2] The Issue was argued on the basIs of a wntten statement of agreed facts and a bound volume contammg certam documents to whIch that statement referred In addItIon to those documents, the partIes put before me a set of handwntten file notes created contemporaneously by Ms Noble, who represented the umon m the dealmgs m Issue Notes of her conversatIOns wIth the gnevor and umon officIals had been expurgated, so that all that remamed were notes of her commumcatIOns wIth DavId Spears, who represented the employer m those dealmgs The partIes agreed that these notes would serve as Ms Noble's eVIdence of those commumcatIOns, and should be treated as the eqUIvalent of an exammatIOn m chIef on whIch there had been no cross examInatIon. [3] The statement of agreed facts IS quoted here wIth ItS parenthetIcal cross references to the book of documents deleted I have mterJected pertment mformatIOn from the document book or Ms Noble's notes at appropnate pomts m the partIes' narratIve 1 On May 1'3 2002 the LIquor Control Board of OntarIo (the 'LCBO") termmated the employment of Leon East ("East) The OntarIo LIquor Board Employees Umon (the 'Umon) whIch represented East m hIs employment relatIOns wIth the LCBO filed grIeyance GSB #0507/02 oyer East s termmatIOn. 2. The partIes resolyed grIeyance GSB #0507/02 by entermg mto mmutes of settlement dated AprIl 8 200:3 Under the mmutes of settlement East s termmatIOn dated May 1'3 2002 was rescmded and he was remstated to hIs former posItIon effectIye AprIl 22 2008 The perIod between East s termmatIOn and hIS rem statement was treated as a chscIplmary suspenSIOn wIthout payor benefits The mmutes of settlement further proYIded that for a perIod of three years from May 1'3 2002 East s employment would be termmated Immechately 3 for Just cause should he engage m any further mIsconduct whIch would normally result m chscIplme The partIes also agreed that Vice ChaIr KIrkwood would remam seIzed wIth respect to the ImplementatIOn of the settlement '3 Shortly after East s return to work at the LCBO on Apnl 22 200:3 certam Issues arose regarchng East s remtegratIOn mto the LCBO workforce East left work early on Apnl 29 200:3 claImmg that he was not feelmg well. On the same day Apnl 29 200:3 Umon counsel contacted LCBO counsel to advIse that East was not happy at work. She then mqUIred about whether the LCBO would be prepared to provIde East wIth a severance package m exchange for whIch East would agree to termmate hIS employment wIth the LCBO Umon counsel advIsed LCBO counsel that East would be prepared to termmate hIS employment wIth the LCBO m return for $24.500 and the LCBO's agreement to WaIve the approxImately $5 700 that It alleged East owed on account of an alleged WSIB overpayment m adchtIOn to the other aspects of the offer whIch had been prevIOusly made by the Employer 4. On May 1 200:3 LCBO counsel advIsed Umon counsel that the LCBO was not mterested m the buyout 5 By letter dated May 1 200:3 Umon counsel wrote to the Gnevance Settlement Board requestmg that a hearmg be convened before Vice ChaIr KIrkwood to address what the Umon alleged were problems [that] have ansen wIth respect to the ImplementatIOn of thIs settlement 6 On May 7 2008 there were numerous chscussIOns between Umon counsel and LCBO counsel as to the ImplementatIon of the rem statement of the Gnevor LCBO counsel advIsed that the Gnevor was wearmg hIs welcome thm. 7 On May 7 200:3 Umon counsel contacted LCBO counsel. She mchcated that East would now be prepared to termmate hIS employment wIth the LCBO m return for $15000 the LCBO's WaIver of the alleged WSIB overpayment and a reference letter [4] Ms Noble's notes mdIcate that between May 7th and May 26th, Mr Spears responded wIth an oral counter-offer Her note of a conversatIOn wIth Mr Spears on May 26th says "I asked hIm to put offer m wntmg so 1 can send It to the gnevor He sd ok - wIll try to do thIS wk - has to run It by clIent" The partIes' agreed statement of fact contmues 8 On May '30 200:3 LCBO counsel sent Umon counsel a memorandum of agreement settmg out proposed terms upon whIch East s employment wIth the LCBO would be termmated. The terms proposed mcluded a lump sum payment of $7 500 less deductIOns reqUIred by law [5] The document faxed to Ms Noble on May 30th IS reproduced here m full Memorandum of Agreement BETWEEN THE CROWN IN RIGHT OF ONTARIO LIQUOR CONTROL BOARD OF ONTARIO (the LCBO) 4 and ONTARIO LIQUOR BOARD EMPLOYEES UNION (the 'U mon ) and LEON EAST IN THE MATTER OF AN AGREEMENT TO SKVER THE EMPLOYMENT RELATIONSHIP BETWEEN LEON EAST AND THE LCBO WHEREAS Leon East returned from a clIscIplmary suspenSIOn pursuant to a Memorandum of Settlement dated Apnl 8 2008 AND WHEREAS after Leon East returned to work the LCBO the Umon and Leon East made a bona Hde effort to make the employment relatIOnshIp work, AND WHEREAS m spIte of the partIes efforts the LCBO the Umon and Leon East agree that Leon East s employment relatIOnshIp wIth the LCBO IS no longer a vIable relatIOnshIp AND WHEREAS Leon East mJured hIs ankle whIle at work and he confirms that he has recovered fully from hIS ankle mJury and has suffered no ImpaIrment because of and m any way related to hIS ankle mJury AND WHEREAS the LCBO the Umon and Leon East wIsh to forever sever Leon East s employment relatIOnshIp wIth the LCBO THE PARTIES AGREE AS FOLLOWS 1) Leon East agrees to resIgn from hIS employment wIth the LBCO effectIve May 26 200:3 and hIS employment wIth the LCBO wIll be consIdered termmated for all purposes as of that date 2) The LCBO s records wIll mclIcate that Leon East resIgned from hIS employment wIth the LCBO for personal reasons 3) The LCBO wIll pay Leon East a lump sum of $7 500 whIch shall be consIdered a retIrmg allowance for purposes of the Income Tax Act less deductIons reqUIred by law The LCBO shall make best efforts to provIde the payment to Leon East wIthm four weeks of the date that thIs Memorandum of Agreement IS executed. 4) The Umon and Leon East hereby wIthdraw all outstandmg gnevances that have been filed by hIm or on hIs behalf. The Umon and Leon East agree not to refile any gnevance m whole or m part except to enforce the terms of thIs Memorandum of Agreement 5) The LCBO wIll provIde Leon East a letter m the form attached as Attachment A to be provIded by Mr N 811 Lemhan Human Resources Manager for Durham LOgIStICS FacIlIty Leon East should dIrect any potentIal employer to contact Mr Lemhan or the person m posItIon of Human Resources Manager for Durham LOgIStICS FacIlIty who wIll provIde only mformatIOn consIstent WIth that contamed m the letter 6) Leon East agrees not to reapply to the LCBO for any posItIon of employment and should he reapply for a posItIon of employment thIs Memorandum of Agreement shall be consIdered by the LCBO the Umon and Leon East as Just and sufficIent reason to refuse to hIre hIm or otherwIse contmue to employ hIm. 5 7) IN CONSIDERATION of the terms set out herem and for good and valuable consIderatIon and by Leon East s sIgnature hereunder he releases and forever dIscharges the LCBO (whIch mcludes ItS dIrectors officers employees and any related. affilIated or successor corporatIOns) from any and all causes of actIOn claIms gnevances complamts damages and demands of every nature and kmd whIch Leon East had. has or could have by reason of hIS employment wIth the LCBO or termmatIOn of hIS employment from the LCBO and. m partIcular but wIthout lImItmg the foregomg from any and all claIms m any way ansmg from mCIdental to or m connectIOn wIth all matters raIsed. or whIch could have been raIsed. m the Gnevance FURTHER Leon East and hIS successor(s) agrees not to commence or mamtam any actIon claIm gnevance and/or complamts of any kmd whIch could be claImed agamst the LCBO mcludmg wIthout lImItatIon any claIms or complamts under or pursuant to Ontano s Huma1l Rlf.?"hts Code Emplovme1lt Sta1ldard., Act, Crorv1l Emplovees CollectiVe Barf.?"aJ11l1lf.?" Act Labour Relatlo1ls Act, 1995 or any such legIslatIOn and the collectIve agreement between the LCBO and the Umon AND FOR SAID CONSIDERATION Leon East agrees to release mdemmfy and save harmless the LCBO from any actIon or claIm made agamst It from eIther Canada Customs and Revenue Agency or Human Resources Development Canada pertammg to Leon East IT IS AGREED that thIs Release wIll be raIsed and wIll act as a complete bar to any claIms actIOns gnevances or complamts that Leon East had. may have or may have at any pomt m the future except to enforce thIs Memorandum of Agreement 8) ThIs settlement IS wIthout admIssIOn of lIabIlIty by the LCBO the Umon or Leon East and such lIabIlIty IS specIfically demed. 9) By hIs sIgnature below Leon East confirms that he has been fully and faIrly represented by the Umon and ItS representatIves m thIs matter Leon East confirms that he has read and understands the terms of thIs Memorandum of Agreement and enters It freely voluntanly and wIthout duress LCBO Date ONTARIO LIQUOR BOARD Date EMPLOYEES UNION LEON EAST Date I note that although paragraph 5) of the memorandum refers to "a letter m the form attached as Attachment 'A'," the fax to Ms Noble dId not mclude any such attachment 6 [6] The partIes' narratIve contmues 9 On or about June 2 2008 Umon counsel advIsed LCBO counsel that East s bottom Ime was $1'3 000 less apphcable deductIOns LCBO counsel advIsed Umon counsel that the LCBO would agree to a settlement upon those terms provIded that the other terms were acceptable. Umon counsel stated that East wanted to look over the proposed settlement document and that she would couner It to hIm. Umon counsel asked If the Gnevor should go to work or not. LCBO counsel subsequentlv advIsed that the LCBO chd not want someone back m the workplace wIth an offer of severance on the table and that If he does not want the offer then the partIes could dIscuss the Gnevor commg back. 10 Umon counsel requested confirmatIOn of the rate of taxatIOn on a lump sum settlement of $1'3 000 LCBO counsel mchcated hIs understandmg that the lump sum amount of $1'3 000 would be taxed at a rate of 20%. 11 On or about June 2 2008 after some further chscussIOns about wlthholdmg tax. Umon counsel advIsed LCBO counsel that the Gnevor wanted to reVIew the document and would call Umon counsel If he wanted to accept the proposed settlement. [7] Ms Noble's notes record that later on June 2nd she had thIS telephone conversatIOn wIth Mr Spears I told hIm that he IS now makmg an offer of $15K - savs ItS because he chdn t know how much the tax would be I explamed thIs not good nego practIce & he d be mad If the Er chdlt. He wIll talk to hIs chent From the context It IS apparent that "hIm" and the last "he" refer to Mr Spears, otherwIse, "he" refers to the gnevor Ms Noble's notes also record a telephone call from Mr Spears later that day The offer for $1 '3K IS open for 10 mmutes OtherwIse he shd come back to work Wednesdav and hve up to the back to work. WhIle thIS note IS dated "June 3/03", It appears (and counsel argumg thIS matter confirmed) that the call occurred on June 2nd, as dId two further telephone conversatIOns or messages m whIch Ms Noble told Mr Spears that the gnevor had told her "send me doc & I'll look at It tomorrow & call you to say If I accept It," and Mr Spears responded that $13,000 was (stIll) the bottom lme and "let us know tomorrow" [8] The statement of agreed facts contmues 12. On June '3 200:3 Umon counsel advIsed LCBO counsel that East had decIded that he wanted to return to work at the LCBO She asked that If LCBO counsel wanted to provIde mformatIOn regardmg the Gnevor s return to work. then he could advIse Umon counsel. 1'3 On June 5 200:3 at approxlmatelv 1.00 pm. East contacted Nell Lemhan ("Lemhan) Human Resources Manager Durham LOgIStICS Faclhtv East left a vOlcemml message for Lemhan statmg that he had Just receIVed the proposed 7 memorandum of agreement from the Umon m the maIl and. after lookmg at It had decIded that he would sIgn It. He stated m the message that he would hke to accept the package Later that same day Lemhan spoke wIth East and advIsed hIm to contact the Umon. Also on the same day LCBO counselleft a message for Umon counsel advIsmg her of the message that East had left for Lemhan. LCBO counsel also advIsed that the LCBO chd not want to be seen as negotIatmg wIth the employee chrectly LCBO counsel also advIsed that he would have Lemhan call the Umon representatIve Lemhan subsequently called Ms Chaykowsky of the Umon who advIsed that commumcatIOn on thIs matter should be chrected to UnIOn counsel. 14. On the mormng of FrIday June 6 200:3 Umon counsel left the followmg vOlcemaIl message for LCBO counsel HI DavId, Its Juha Noble calhng about Leon East I got your message from yesterday I understand that you are saymg that the LeE( l (hdn t negotIate wIth hUll and that s fine I am sure that IS the case And anyway I spoke to Leon and he s apparently gomg to send me somethmg that IS sIgned by fax today so we wIll see If I actually get that and If I do I guess what I can do IS leave you a message to the effect of whether Leon and the lTmon both sIgned the agreement and then you wIll know (lkay? Any questlOns gIve me a call 90f) 712 2912. 15 That same mornmg Umon counsel contacted LCBO counsel agam. She mchcated that the proposed settlement document chd not mclude a term WaIvmg the approxImately $5 700 that the LCBO had alleged East owed on account of the alleged WSIB overpayment. Umon counsel chd not express any other concerns about the proposed settlement document to LCBO counsel. Later that same day at approxImately 1 '38 p m. LCBO counsel advIsed Umon counsel by telephone message that the LCBO agreed to WaIve thIs approxImately $5 700 alleged overpayment. He stated that he would change the proposed mmutes of settlement and that It was the LCBO s VIew that there was a deal. [9] Accordmg to Ms Noble's notes and one of the employer's documents, the message quoted m paragraph 14 of the agreed statement of fact was left at around 9 40 a.m. Accordmg to her notes, Ms Noble first called about the waIver proVIsIOn at 9 55 a.m., and after IdentIfymg that the memorandum dId not contam a WaIver provIsIOn saId "I thmk he wants that" There was no mdlcatIOn m that message that she had spoken to the gnevor m the mtervenmg 15 mmutes Ms Noble called agam at 11 30 a.m. to ask whether the alleged overpayment would be waIved Her note of that conversatIOn mcludes the words "Yes he wants It m Mmutes" From the context It IS clear that "he" meant the gnevor m each of these notes 16 On Monday June 9 2008 LCBO counsel sent Umon counsel correspondence enclosmg a document referred to as a draft of the memorandum of agreement wIth respect to the severance of East s employment wIth the LCBO The enclosed document mcluded a term under whIch the LCBO agreed to WaIve the alleged overpayment (as agreed on June 6 2008) as well as a document referred to as the draft reference letter bemg Attachment A to the Memorandum of Agreement. 17 Later on June 9 2008 Umon counsel contacted LCBO counsel. She asked the LCBO to amend the resIgnatIOn date noted m the draft reference letter to make It consIstent WIth the resIgnatIOn date noted m the draft of the memorandum of 8 agreement. The LCBO agreed to the amendment and LCBO counsel forwarded the revIsed reference letter to Umon counsel bye maIl on June 9 2008 18 Umon counsel chd not advIse that these were the full extent of any changes the Umon was seekmg. Nor chd Umon counsel advIse that the Umon was seekmg any further changes to any extent. LCBO counsel chd not ask whether these were the full extent of any Umon changes to the draft of the memorandum of agreement. In theIr conversatIOn on June 9 2008 LCBO counsel asserted the partIes had a deal and Umon counsel chd not agree wIth that posItIon. [10] Concermng the exchange referred to m the last sentence of paragraph 18 of the agreed statement of fact, Ms Noble's note of the conversatIOn of June 9th records thIS DavId says there IS offer & acceptance - based m part on Leon scalI saymg I accept to Lebo I sd I chdn t thmk they cd really base It on that but I also hope we have closure Ifhe can send me amended letter today I wIll get It out to Leon. The agreed facts contmue 19 The LCBO never receIVed an executed memorandum of agreement from the Umon or the Gnevor The LCBO has never paId any momes to the Gnevor pursuant to the proposed memorandum of agreement or the draft of the memorandum of agreement eIther m trust or otherwIse or provIded a sIgned reference letter to the Gnevor or the Umon. 20 On June 12 2008 East contacted Bev Jordan. Human Resources Consultant at the LCBO He advIsed her that he had changed hIS mmd because of new CIrcumstances that forced hIm to resume work and that he could not accept the severance package 21 By letter dated June 16 2008 Umon counsel advIsed LCBO counsel that Mr East has mstructed me to commumcate to the Employer that he does not wIsh to accept the Employer s offer as contamed In the draft Memorandum of Agreement 22. NeIther LCBO nor Umon Counsel specIfically chscussed the chstmctIOn. If any between the descnptIOn of documents as proposed" memorandum of agreement as opposed to draft memorandum of agreement. 28 The Issue that reqUIres determmatIOn IS whether the partIes have reached a settlement concernmg the termmatIOn of East s employment wIth the LCBO and. If so the terms thereof. Argument [11] The Issue was argued by Mr Freedman for the employer, and Mr Flood for the unIOn. [12] Mr Freedman submItted that an agreement IS made when the partIes agree on all essentIal terms, and that m thIS case that had occurred on June 6th when the employer's advIsed umon counsel that It agreed to mclude the prOVISIOn that umon counsel had IdentIfied as absent from the draft memorandum sent to her on May 30th. 9 [13] Mr Freedman IdentIfied a number of general prmcIples concermng the settlement of gnevances that It IS not necessary for a settlement to be m wntmg, as oral settlements are valId and enforceable, that the fact that an oral agreement may contemplate formalIzatIOn later m wntmg, or that the gnevor wIll execute a formal release, does not dImImsh the force of the oral agreement when It IS apparent that executIOn of the document IS a matter of the performance of the agreement rather than ItS creatIOn, that It IS not necessary for the gnevor to sIgn a memorandum of settlement m order to settle matters on whIch the trade umon IS bargammg agent, as the umon's agreement IS legally sufficIent to bmd the gnevor, that m assessmg whether an oral exchange resulted m an agreement one must consIder the obJectIve effect, m context, of the words actually used, not the unexpressed mtentIOn of the speakers of those words Each of the followmg awards was cIted m support of one or more of these proposItIOns Re Oakville Assn. for the Mentally Retarded and OPBE U, [1993] 29 C L.AS 600 (Samuels), Re Bilt-Rite Upholsterlllg Co Ltd. and Upholsterers'InternatiOnal Ulllon of North Amenca, Local 30 (1979), 24 L.AC (2d) 428 (Rayner), Re Network North and OPBE U, Loc. 666 (1996), 53 L.AC (4th) 102 (Thorne), and Mallltoba and M G.E U (Martens) (1997), 68 L.AC (4th) 321 (Freedman), Re Sudbury Distnct Roman Catholic Separate School Board and OE C TA. (1997), 61 L.AC (4th) 223 (Kaplan), Re Bntish ColUlllbia and B C G.E U, [1988] 9 C L.AS 97 (Larson) [14] Mr Freedman relIed partIcularly on Re Concord ConfectiOns Inc. and Bakery, ConfectiOnery and Tobacco Workers' Interna tiOnal Ulllon, Local 264 (Bobotan Gnevance), [1999] OL.AA No 633 (Bendel) There the employer proposed a settlement on terms set out m a partIcular document The umon proposed two changes to the document. The employer told the umon It agreed to those changes The arbItrator found that an oral agreement was made at that pomt, because by proposmg those changes the umon had ImplIedly stated that wIth those changes the terms m the employer's document were acceptable [15] Mr Freedman submItted that the same analysIs applIed here The employer made a comprehensIve proposaL The umon's response only questIOned the omISSIOn of a partIcular term. An agreement was formed, he submItted, when the employer agreed to mclude that term. He acknowledged that the umon had earlIer mdIcated that the gnevor would have to agree to the terms of any deaL He noted that the gnevor had 10 mdIcated acceptance of the terms of the deal m hIS message to Mr Lemhan on June 5th, and the umon must be taken to have been actmg on hIS behalf thereafter m IdentIfymg obJectIOns and, ImplIedly, confirmmg agreement to the matters to whIch It dId not express an obJectIOn. He mVIted me to find that the "change of mmd" mentIOned by the gnevor m hIS telephone conversatIOn wIth Bev Jordan on June 12th was a change from acceptmg the deal to not acceptmg It, and that thIS was somethmg he could not then do [16] For the umon, Mr Flood noted that the onus IS on the employer to demonstrate that the partIes came to an agreement. He submItted that thIS onus IS very substantIal, partIcularly when the clmm IS based on oral representatIOns made on vanous dates wIth the purported result that the gnevor's nght to employment was relmqUIshed. Re Doman Forest Products Ltd., Nanalmo Sawmill DivisiOn and InternatiOnal Woodworkers of America, Local 1 80(1983), 13 L.AC (3d) 274 (Munroe), Re Pacific Forest Products Ltd., Nanall110 DivisiOn Pulp Paper and Woodworkers of Canada, Local 7 (1983), 14 L.A C (3d) 151 (Munroe), and Re FPC Flexible Inc. and G CI U, Loc. N 1 (1997), 76 L.AC (4th) 322 (H D Brown) were cIted wIth respect to thIS onus and the desIrabIlIty of usmg sIgned documents as a means of sIgmfymg whether and on what terms agreement had been reached. Mr Flood submItted that sIlence m bargammg does not sIgmfy acceptance Toronto (City) V Toronto CiViC Employees Ulllon, Local 416 (Lewis Grievance) [2002] 0 L.AA No 531 (Luborsky), Cold Sprlllgs Farm Ltd. V Canadian NatiOnal FederatiOn of Independent Ulllons (Bull Grievance) [2002] 0 L.AA No 474 (Snow) If the a ward m Re Concord ConfectiOns Inc., supra, suggests otherwIse, he argued, It should not be followed. [17] Mr Flood noted that the umon and employer are the necessary partIes to any settlement, that the umon IS the exclusIve bargammg agent and that the statements by the gnevor on whIch the employer relIes here cannot be treated as havmg been made on the umon's behalf Reference was made to Noel V SOC1(3te d'energie de la Bale James [2001] 2 S C R 207 and McGavlll Toastmaster Ltd. v Alllscough et a1. (1975), 54 D L R (3d) 1 (S C C) wIth respect to the umon's status as exclusIve bargammg agent and ItS relatIOnshIp to a bargammg umt employee 11 [18] Mr Flood argued that m thIS case there was an ongomg process of negotIatIOn that never reached a final agreement The umon had never represented that there would be agreement If the employer made the suggested change to ItS offer, and the employer never asked whether there would be agreement If It dId. WhIle there can be cases m whIch there IS a complete, bmdmg oral agreement of whIch reductIOn to wntmg IS procedural, thIS was not such a case I twas apparent from the proposed memorandum of agreement that sIgnatures, and partIcularly the gnevor's sIgnature, were consIdered essentIal to the creatIOn of an agreement Paragraph 9 contemplates that the gnevor wIll confirm wIth hIS sIgnature that he has read and understands the Memorandum of Agreement and that he "enters It freely, voluntanly and wIthout duress" It also reqUIres that he confirm by hIS sIgnature that "he has been fully and faIrly represented by the Umon and ItS representatIve m thIS matter" Mr Flood notes that thIS latter portIOn of the paragraph IS for the benefit of the umon, a benefit It could not have unless the gnevor sIgned [19] Mr Flood argued that Ms Noble's commumcatIOns on behalf of the umon, partIcularly her first message on the mormng of June 6th, had made It apparent that the gnevor's sIgnature on a wntten memorandum of agreement was a precondItIon to agreement by the umon. She IdentIfied that the proposed deal m ItS final form would have to be sent to the gnevor for hIS approval, whIch he was to sIgmfy by hIS sIgnature, before the umon would agree to It. [20] WIth respect to the need for sIgnatures and wntmg, reference was also made to Re Hall Lal11p of Canada Ltd. and Ulllted Autol11oblle Workers, Local 1620 (1972) 3 L.AC (2d) 303 (Ord) and Bawlko Investl11ents Ltd. v Kernels Popcorn Ltd. (1991), 79 D L R (4th) 97 (Ont C.A) [21] In reply, Mr Freedman argued that the employer was not relymg on sIlence but on the umon's overt act m suggestmg mclusIOn of a partIcular prOVISIOn as Implymg umon agreement to the balance of the proposal It had made WIth respect to the umon's submIssIOn that Ms Noble's first message of June 6th made It a condItIon that the settlement be sIgned by the gnevor, Mr Freedman mVIted me to look at the course of conduct before and after that message and note that there was no dIscussIOn of such a reqUIrement at any other pomt. He added that there was never any agreement that the 12 gnevor's sIgnature would be a condItIon of the agreement. In any event, he submItted, the language of the message dId not clearly add such a condItIon. He noted partIcularly that when Ms Noble later proposed the addItIon of a prOVISIOn WIth respect to the WSIB overpayment Issue, she dId not add that a deal was condItIonal on the gnevor's sIgnature He acknowledged that It would not have been necessary for Ms Noble to repeat the condItIon If It had been expressed clearly m the first message of the day, but saId that because that was not clear enough m that message the faIlure to mclude It agam m the next commumcatIOn m effect dropped It. Analysis [22] In Mallltoba and M G E U (Martens) (1997), 68 L.AC (4th) 321, arbItrator Freedman observed (at pp 328 9) that As a matter of prmcIple umons and employers often settle gnevances verbally and often settle gnevances m wntmg and often confirm m wntmg settlements reached verbally So long as the facts clearly demonstrate that the Provmce and the Umon have unconchtIOnally agreed to settle a matter and so long as no questIOn IS then left open expressly or ImphcItly between them as to whether the gnevor IS to be bound. verbal or wntten settlements between the Umon and the Provmce wIll bmd a gnevor In my VIew a settlement was reached when the Provmce accepted the proposal m the February G letter and the subsequent Memorandum of Settlement need never have been sIgned by eIther party The reqUIred degree of certamty had already been achIeved Naturally to aVOId confusIOn and mIsunderstandmg It IS generally preferable that settlements be effected or confirmed m wntmg That certamly IS the normal practIce of these two partIes and It IS as mchcated. best that such occur As was saId m Re Sudburv Dls'tnct Roman Cathollc Separate School Board and OE C TA. (J997) 61 L.A.C (4th) 228 (Kaplan) at 229 gIVmg effect to settlements reached between the partIes IS of paramount Importance m labour relatIOns In the normal course of events settlements should be wntten That IS the usual practIce of these partIes and It IS unfortuna te albeIt understandable gIVen the CIrcumstances that usual practIces were not followed. That bemg saId. a settlement need not be wntten where the facts mchcate that a matter was resolved. It IS open to a board of arbItratIOn to so find absent any wntten agreement as we do m thIs case What IS Important IS to determme whether a settlement has been reached and then gIVen the tremendous Importance of settlements m labour relatIOns to gIVe any such settlement appropnate effect [23] There IS no substantIal dIspute m thIS case about the correctness of the statements of prmclple m thIS passage, nor about the correctness of the statements of prmclple summanzed m paragraph [13] above It IS not suggested here that terms of settlement on whIch an employer and a umon come to clear and uncondItIonal oral 13 agreement can have no legal effect unless reduced to wntmg m a document sIgned by the employer and trade umon, nor that such an agreement could not be bmdmg on a gnevor as a matter oflaw unless he sIgned It or otherWIse expressly agreed to ItS terms [24] The employer relIes heavIly on the award m Re Concord ConfectiOns Inc., supra. There, a member of employer's management, Mr Nussbaum, spoke dIrectly to a gnevor, offermg to pay hIm money and dIscontmue a CIVIl actIOn agamst hIm m return for hIS sIgmng a release and wIthdrawmg hIS gnevance The gnevor took the release to hIS umon. The umon's representatIve, Mr PIercey contacted Mr Nussbaum. On Mr Nussbaum's eVIdence, Mr PIercey had then saId that the proposed settlement was acceptable subJect to two changes to the release that he explamed. Accordmg to Mr PIercey, he told Mr Nussbaum that the gnevor was leamng toward acceptmg the offer, and then observed that there was nothmg m the release about the dIscontmuatIOn of the actIOn and asked If the employer mtended to dIscontmue It In any event, It was common ground that Mr Nussbaum had saId that If Mr PIercey had any changes to make to the draft Release, he should fax them to hIm. [25] Thereafter, Mr Nussbaum receIved a fax from Mr, PIercey captIOned "For your consIderatIOn" settmg out two paragraphs, one below the headmg "New Paragraph" and the other below the headmg "Change the Srd paragraph to read" After consultmg hIS lawyers about the proposed changes, Mr Nussbaum telephoned Mr PIercey and told hIm that they were acceptable Mr Nussbaum testIfied that he had then saId they had a deal and that thIS had elIcIted no demal from Mr PIercey, who had stated that the gnevor would be commg to the umon office the followmg day to sIgn the papers In hIS exammatIOn m chIef Mr PIercey demed ever saymg that they had a deaL He testIfied that he dId not remember saymg that the gnevor was commg to hIS office the next day, and certamly had not saId that he would be domg so for the purpose of sIgmng the release In cross exammatIOn, however, Mr PIercey acknowledged that he mIght have led the employer to belIeve that the gnevor would sIgn the revIsed release, and had never specIfically told the employer that settlement of the gnevance was contmgent upon the gnevor sIgmng the revIsed release The gnevor dId not sIgn, the gnevance proceeded to arbItratIOn and the employer obJected that the gnevance had been settled 14 [26] The employer there argued that a firm agreement had been made by Mr Nussbaum and Mr PIercey on behalf of the employer and umon, respectIvely, and that the gnevor was expected to attend the umon office to sIgn the release, not to study It further As recorded m the award, the umon's argument was that even If the arbItrator made those findmgs, the obJectIOn that the gnevance had been settled should be dIsmIssed for one of three reasons first, that the employer had negotIated dIrectly wIth the gnevor so the gnevor was a necessary party whose sIgnature was reqUIred, second, that the amount to be paId to the gnevor was not expressly stated m the release so there was no complete agreement, and thIrd, that there was no agreement by the umon, whIch had carnage of the gnevance, that the gnevance would be wIthdrawn. [27] The arbItrator found that Mr PIercey had been actmg on behalf of the umon m negotIatmg a settlement of a gnevance, from whIch It followed that the gnevor's sIgnature was not reqUIred to effect a settlement, that the omISSIOn of the amount of the consIderatIOn from the release was of no sIgmficance smce Messrs Nussbaum and PIercey both knew what amount had been agreed, and that If there was agreement between the employer and the umon It was ObVIOUS that It was an ImplIed term that the umon would wIthdraw the gnevance On the questIOn whether the conduct of Messrs Nussbaum and PIercey had resulted m agreement between the employer and umon, the arbItrator made thIS findmg ~'37 I am further satIsfied. even on the verSIOn of the facts most favourable to the umon that an agreement was reached m the chscussIOns between Mr PIerCey and Mr Nussbaum on June 21 When Mr PIerCey raIsed two specIfic ObjectIOns to the draft Release that dav he was ImphcItlv statmg that evervthmg else was acceptable Once the two specIfic matters he raIsed were resolved m the manner he had proposed. an agreement was reached. There was nothmg else left to dIscuss Mr PIerCey even accordmg to hIs own testImony chd not mchcate to the emplover exphcItlv or ImphcItlv that he lacked the authontv to conclude a settlement or that It was m any way contmgent on the gnevor s acceptance [28] It seems to me that arbItrator Bendel was makmg a findmg of fact m the second sentence of the passage Just quoted, not pronouncmg a rule of law of general applIcatIOn. [29] A proposal of changes m response to an offer may amount to a counter-offer that ImplIedly mcludes every term of the mItIal offer that IS not expressly reJected or amended, partIcularly If the offer to whIch It responds was coupled wIth an express request for a response IdentIfymg any desIred changes to the offer A counter-offer may 15 be ImplIedly subJect to condItIons prevIOusly IdentIfied by Its proponent, such as ratIficatIOn by the proponent's prmcIpal or the gnevor's acceptance of the terms of settlement, eIther orally or m wntmg A proposal of changes m response to an offer may not be a counter-offer at all It may be a suggestIOn that the mItIal offer be Improved, unaccompamed by any firm undertakmg that an Improved offer would be accepted - an "mvItatIOn to treat" m the language of contract law These examples do not exhaust the possibIlItIes The nature and ImplIcatIOns of a response to an offer depend on the words used and the context m whIch they are used [30] In thIS case, several thmgs about the negotIators' commumcatIOns and theIr context suggest that a bmdmg agreement could not reasonably have been expected to result, and dId not result, from the employer's mdIcatmg on June 6th that It would amend ItS proposal to mclude a waIver of the alleged WSIB overpayment. [31] FIrst, the memorandum of agreement faxed to Ms Noble on May 30th was mcomplete It saId m paragraph 5) that the employer would gIve the gnevor a letter "m the form attached as Attachment 'A'," but there was no such attachment WIthout an attachment, thIS was essentIally an offer to provIde a letter m a form to be agreed upon later The language of the prOVISIOn and the pnor dIscussIOns reflected m Ms Noble's notes do suggest generally what sort of letter was mtended, but there IS no eVIdence of oral agreement on ItS contents or on the substance of ItS contents Both of the negotIators mIght reasonably have thought at that pomt that there would be no great dIfficulty commg to agreement on the form of the letter after agreement was reached on the other, more contentIOus terms StIll, It was somethmg left to dIscuss ProvIsIOn for some vanant of a letter of reference IS not an "essentIal term" of an agreement about the resIgnatIOn of an employee, of course, m the sense that such an agreement could not be gIven legal or practIcal effect If such a prOVISIOn were absent An "Attachment 'A'" IS, however, an essentIal term of an agreement that mcludes an oblIgatIOn to delIver a "letter m the form attached as Attachment 'A"', smce wIthout the attachment there IS no way of knowmg whether any partIcular letter satIsfies the oblIgatIOn as framed [32] Second, the language of paragraph 9 of the proposed memorandum ImplIed that the gnevor's sIgnature on It was a prereqUIsIte to the creatIOn of a bmdmg agreement, 16 not a mere procedural formalIty that he could become oblIged to perform as a result of an oral agreement between the umon and the employer Paragraph 9 saId 9) By hIs sIgnature below Leon East confirms that he has been fully and faIrly represented by the Umon and ItS representatIves III thIS matter Leon East confirms that he has read and understands the terms of thIs Memorandum of Agreement and enters It freely voluntarIly and wIthout duress [33] The first sentence reqUIred that the gnevor confirm, by sIgmng the document, that he was satIsfied wIth the umon's representatIOn m the matter ThIs was not somethmg that the umon could commIt the gnevor to provIde m the exerCIse of ItS authonty as exclusIve bargammg agent. The second sentence had the gnevor confirmmg as well that he "enters" the Memorandum of Agreement "freely and voluntary and wIthout duress" The language chosen was qUIte mappropnate If It was expected that when the tIme came for the gnevor to sIgn he would be under legal compulsIOn to do so by reason of an earlIer oral agreement between the employer and the umon to whIch he had not assented, smce m that event It could not be smd that he was actmg freely and voluntanly m sIgmng The language was at very least grammatIcally awkward If hIS sIgmng was expected to be the reqUIred result of an oral agreement between the employer and umon to whIch he would have orally assented, smce m that event he would have "entered" the agreement before he sIgned, not at the tIme of sIgmng as the use of the present tense "enters" ImplIes [34] ThIrd, when on June 2nd Ms Noble had told Mr Spears that $13,000 was the gnevor's bottom lme, he had clearly understood that thIS dId not Imply agreement to the other terms he had set out m the memorandum she had receIved from hIm by fax. She had no reason to suppose that It would be necessary to expressly negatIve any such ImplIcatIOn when she asked hIm about the wmver prOVISIOn m her second and thIrd commumcatIOns of June 6th. Mr Spears had told her that the employer had not negotIated wIth the gnevor m response to hIS mtervenmg call She had no reason to suppose that Mr Spears thought the gnevor's call had altered the basIs on whIch counsel were dealmg wIth one another m thIS or any respect, apart from the alteratIOn that would have been apparent from her first message on June 6th. 17 [35] Fourth, Ms Noble's first message to Mr Spears on June 6th had made It clear that the umon would not agree to a settlement thereafter unless It had been reduced to wntmg and sIgned by the gnevor I got your message from yesterday I understand that you are saymg that the LeBO chdn t negotIate wIth hIm and that s fine. I am sure that IS the case And anyway I spoke to Leon and he s apparently gomg to send me somethmg that IS sIgned by fax today so we wIll see If I actually get that and If I do I guess what I can do IS leave you a message to the effect of whether Leon and the Umon both sIgned the agreement and then you wIll know [36] The meamng and sIgmficance of thIS message must be apprecIated m the context of what Mr Spears then knew or had heard from Ms Noble [37] Ms Noble had earlIer mdlcated that the gnevor would have to approve the terms of a deal before the umon would agree to It That IS conceded She had also saId he would have to see It m wntmg before approvmg It The memorandum of May 30th was delIvered m response to the latter reqUIrement One of the prOVISIOns of that memorandum was an acknowledgement by the gnevor he had read It, somethmg he could not do before the very document he was expected to sIgn was actually m eXIstence Even before the gnevor receIved the draft memorandum, there had been the further oral dIscussIOns about the gnevor's "bottom lme" concermng the monetary payment and whether the employer would be wIllIng to Improve ItS offer accordmgly After learmng that It would, the gnevor had mSlsted, agamst Ms Noble's advIce, that she make an mcreased monetary demand on hIS behalf She had done that, and endured a predIctably annoyed response The gnevor had then repeated that he would read the document when It arnved and let her know whether he would agree to It The next day, however, the gnevor had told Ms Noble he wanted to return to work rather than pursue the negotIatIOns, and she had started actmg m accordance wIth that mstructIOn. If hIS statement to the employer on June 5th IS to be belIeved, he had gIven that mstructIOn wIthout waItmg to see the wntten memorandum. On June 5th the gnevor had spoken dIrectly wIth the employer and saId that he was wlllmg to sIgn a memorandum that he saId he had only receIved that day Ms Noble had learned of thIS from the employer's counseL By that pomt no one mvolved could have been unaware that the gnevor had proven unsteady and unrelIable m hIS dealmgs wIth the umon. 18 [38] Agamst that background, Ms Noble left Mr Spears a message saymg that she had spoken to the gnevor Clearly he had told her that he was wIllmg to enter mto an agreement she told Mr Spears "he's apparently gomg to send me somethmg that IS sIgned by fax today" Equally clearly, she was not prepared to effect an agreement based on hIS oral mstructIOns she added "so we wIll see If I actually get that" She wanted It m wntmg from the gnevor, sIgned ThIs was not a surpnsmg posItIOn for her to take wIth the gnevor, m lIght of hIS conduct durmg the prevIOUS three days She told Mr Spears that "what I can do IS leave you a message to the effect of whether Leon and the Umon both sIgned the agreement and then you wIll know" ThIs IS the closest eIther of the negotIators ever got to IdentIfymg whether they understood that the result of theIr negotIatIOns, If successful, would be a wntten agreement or an oral agreement to be confirmed m wntmg [39] Ms Noble's first message of June 6th was sufficIent to put the employer on notIce that thereafter the umon would reqUIre the gnevor's sIgned acknowledgement that he was satIsfied wIth any deal before It would agree to It That condItIon was not ImplIedly wIthdrawn by her two subsequent commumcatIOns that day Nothmg about the context suggested that there had been any change m the CIrcumstances that had led her to mtroduce the condItIon. [40] Mr Freedman argued that the employer dId not agree to a precondItIon that the gnevor would have to assent m wntmg to the terms of any deal before the umon would agree to them. No such agreement was necessary The employer could refuse to negotIate under those condItIons, but It could not proceed and then later mSIst that the umon's words and conduct be mterpreted wIthout regard to the qualIficatIOn the umon had placed on them. [41] The gnevor's dIrect commumcatIOn wIth the employer on June 5th can have no sIgmficance m assessmg whether the employer and trade umon made an agreement on June 6th. The gnevor had no authonty to speak for the trade umon. It was for the umon, not the employer, to be satIsfied that the gnevor agreed to the terms of any partIcular deaL OtherwIse, the gnevor's state of mmd at any partIcular pomt was of no legal consequence on thIS Issue, and It does not matter what he meant by the change of mmd remark m hIS call to the employer on June 12th. The employer was eVIdently and 19 JustIfiably frustrated by the course the negotIatIOns took as a result of the gnevor's hIghly changeable state of mmd, but sympathy wIth the employer's frustratIOn could not affect the result. [42] IndIvIdually and collectIvely, the four CIrcumstances IdentIfied above created a context m whIch Ms Noble's second and thIrd com mum catIOns of June 6th could not reasonably be mterpreted as Implymg uncondItIonal agreement to the terms last proposed by the employer If only the employer would add a waIver proVIsIOn to them. [43] For these reasons I determmed that the partIes had not reached a settlement concermng the termmatIOn of the gnevor's employment wIth the LeBO m June 2003 As mdIcated m the decIsIOn I released on July 2, 2004, I remam seIsed wIth any questIOn the partIes are unable to resolve concermng the remedIes reqUIred to put the gnevor back m the posItIOn he would have been m had the employer not taken the posItIOn that he had resIgned Dated at Toronto thIS 23rd day of August, 2004 ~~