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HomeMy WebLinkAbout2003-2259.Granholm.05-03-22 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# 2003-2259 UNION# 2003-0701-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Granholm) Union - and - The Crown In RIght of Ontano (Mimstry of Tounsm and RecreatIOn) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Jim GIlbert Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Sean Kearney Semor Counsel Management Board Secretanat HEARING March 9 2005 2 DeCISIon In a gnevance dated Apnl 17 2003 Mr K. Granholm alleges that the Employer reneged on an agreement reached on November 26 2002 In partIcular the Umon takes the posItIOn that dunng a gnevance meetIng on November 26 2002, the Employer agreed, among other thIngs, to gIve Mr Granholm an IntervIew for a posItIOn whIch the partIes antIcIpated would be posted In the future The Employer dIsputes that It agreed to IntervIew Mr Granholm for an upcomIng posItIOn. However the Employer takes the posItIOn that even If It dId agree to an IntervIew the Umon cannot enforce thIS verbal agreement, gIven that there IS no reference to It In the wntten settlement whIch was subsequently executed. The partIes agreed to make submIssIOns based on the Umon's best case In other words, the partIes agreed to assume as true that the Employer agreed to gIve Mr Granholm an IntervIew dunng a gnevance meetIng held on November 26 2002, and counsel made submIssIOns as to whether such a verbal commItment could be enforced In these CIrcumstances The gnevance dated Apnl 17 2003 wIll be dIsmIssed If the Employer's motIOn succeeds If the Employer's motIOn IS unsuccessful, It wIll then be necessary to hear eVIdence about whether the Employer agreed to gIve Mr Granholm an IntervIew for the posItIOn dunng the November 26 2002, gnevance meetIng and the ImplIcatIOns of such an agreement. Mr Granholm started wIth the Employer In September 1999 and was employed as a Manual Worker By letter dated July 22, 2002, Ms E Nemeth, the General Manager of the Old Fort WillIam Histoncal Park ("the Park"), advIsed Mr Granholm that the posItIOn of Manual Labourer was beIng elImInated and that he would not be recalled to the Park. Mr Granholm responded by gneVIng that he had been wrongly termInated. In attendance at the gnevance meetIng on November 26 2002, was Ms J PIlley a Umon representatIve, Mr 3 Granholm and a desIgnee for the Employer By the conclusIOn of thIS meetIng, they had agreed on the terms of settlement whIch Included, for our purposes, an agreement that Mr Granholm would be gIven an IntervIew for a specIfic job that was to be posted In the future For reasons not yet dIsclosed, the partIes dId not execute a wntten settlement on November 26 2002 The Memorandum of Settlement ("the Memorandum") relatIng to the resolutIOn ofMr Granholm's gnevance IS dated December 5 2002, and was executed by Ms PIlley Mr Granholm and the Employer's desIgnee I have decIded not to reproduce the complete text of the Memorandum, because It IS unnecessary to do so and because It contaIns a confidentIalIty provIsIOn. I sImply note that the Memorandum contaInS four terms, wIth a preamble that reads "The partIes agree to the folloWIng terms and condItIOns as full and final settlement of the above captIOned gnevance and all related matters" MisSIng from the Memorandum IS any reference to an agreement by the Employer to gIve Mr Granholm an IntervIew for an upcomIng posItIOn. The specIfic posItIOn whIch was the subject of the agreement on November 26 2006 was posted eventually Mr Granholm applIed for the posItIOn, but he was not gIven an IntervIew ThIS led to Mr Granholm filIng hIS gnevance allegIng that the Employer reneged on the agreement reached on November 26 2002 The posItIOn of each party IS qUIte straightforward. The Employer argues that only the Memorandum constItutes the agreement of the partIes and that any matter agreed to at the November 26 2002, gnevance meetIng whIch IS not reflected In the Memorandum IS Irrelevant and cannot be enforced. The Umon, on the other hand, argues that In order to determIne what constItutes the terms of the agreement, one must consIder not only the Memorandum, but also what the partIes agreed to at the gnevance meetIng. 4 I was provIded wIth In excess of twenty decIsIOns to consIder and, although they provIde a useful reVIew of how settlements are treated, the decIsIOns are not partIcularly helpful wIth respect to the Issue that anses In thIS case Many of them deal wIth the Importance of protectIng settlements reached by the partIes, but each party before me agreed that protectIng settlements IS Important. What the partIes dIsagree on IS what the enforceable terms of the settlement are In thIS case It was the posItIOn of the Umon that Re Ontario (Ministry of Revenue) and o.p s.E. U (Anderson) G S.B No 213/87 (Kates) IS dIrectly on pOInt. The partIes In that matter resolved a number of job postIng gnevances, wIth the employer agreeIng to repost the posItIOns at Issue Three of the gnevors were successful In the subsequent competItIOn and the Umon then claimed that they were entItled to retroactIve pay for the penod they were demed the posItIOn. The employer demed that the gnevors were entItled to compensatIOn and relIed on an alleged oral agreement negotIated between counsel dunng theIr settlement dIscussIOns The employer alleged that counsel had agreed orally that there would be no retroactIve compensatIOn. The CIrcumstances In that case are not dIssImIlar from those In the case at hand. The employer attempted to rely on an oral agreement whIch IS not reflected In the wntten settlement, just as the Umon does before me The panel heard the eVIdence and determIned that there was no oral agreement between the partIes as alleged by the employer It appears that no party took the posItIOn, as the Employer does before me, that a party could not rely on an oral agreement In the face of a wntten settlement. In my VIew thIS decIsIOn does not support the posItIOn advanced by the Umon because the panel was not reqUIred to decIde the Issue whIch the Employer now raises before me 5 The purpose of reducIng the terms of a settlement to wntIng IS to define clearly the basIs upon whIch a dIspute IS resolved. PartIes may take vanous posItIOns dunng settlement dISCUSSIOns, but a wntten agreement wIll generally be vIewed as encompassIng the entIre agreement. Settlements In labour relatIOns matters are properly vIewed as sacrosanct and thus arbItrators are loath to allow a party to go behInd the express terms of a settlement. However there may be CIrcumstances whIch could compel the conclusIOn that the agreement reduced to wntIng does not truly reflect the complete mutual agreement of the partIes To faIl to gIve effect to the true agreement of the partIes IS also a matter whIch undermInes the Integnty of the process, the sacrosanct nature of settlements and the Importance of ensunng that settlements wIll be respected. In order to dIsmIss Mr Granholm's gnevance as requested by the Employer I would have to conclude that there IS no legal construct wIthIn whIch an oral agreement to gIve an IntervIew could have any valIdIty In these CIrcumstances I am not prepared to reach such a conclusIOn. In my VIew It IS appropnate to hear the eVIdence on whether the partIes agreed on November 26 2002, that Mr Granholm would get an IntervIew for a posItIOn that was soon to be posted and theIr IntentIOns In relatIOn to whether such an agreement was to prevaIl notwIthstandIng the lack of reference to It In the Memorandum The heanng of thIS matter wIll contInue on Fnday Apn122, 2005 as prevIOusly scheduled. Dated at Toronto thIS 22nd day of March, 2005 ,