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HomeMy WebLinkAbout2003-3443.Rittwage.05-01-31 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# 2003-3443 UNION# 2002-0427-0006 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (RIttwage) Union - and - The Crown In RIght of Ontano (Mimstry of the Attorney General) Employer BEFORE Deborah lD LeIghton Vice-Chair FOR THE UNION KnstIn ElIot ElIot, SmIth BarrIsters and SOlICItorS FOR THE EMPLOYER Andrew Baker Counsel Management Board Secretanat HEARING May 4 2004 2 DeCISIon The gnevor Ms Rlttwage, alleges that the mImstry has breached the confidentIalIty clause of the memorandum of settlement agreed to by the partIes on Apnl 28 2003 Paragraph 7 of the memorandum provIdes 7 The partIes agree that the settlement and compensatIOn payable to the gnevor IS a matter whIch IS confidentIal The gnevor agrees that she shall not dIsclose the terms of settlement or value of the compensatIOn except to ImmedIate famIly members, financIal or legal advIsers, or unless compelled by force of law The partIes also agreed In paragraph 10 that I remaIn seIzed of any dIspute that mIght anse regardIng the ImplementatIOn of the settlement agreement. No oral eVIdence was tendered. The partIes elected to proceed by documentary eVIdence and oral argument. The Umon' s SubmIssIOn The umon claims that In ImplementIng the memorandum of settlement another employee, Ms KIng, became aware of the payments to Ms RIttwage, pursuant to thIS settlement. Part of the agreement Included reImbursement for vacatIOn days used for sIck leave The settlement also allowed the gnevor to take SIX umon leave days by the end of 2003 The umon conceded that Ms KIng's Job Included date stampIng cheques receIved from core pay and that she normally reVIews the cheques before forwardIng them The umon also agreed wIth the employer that Ms KIng IS the person who would normally see the request for umon days for pay purposes The umon maIntaIned that Ms KIng dId see the cheque and therefore had knowledge of the mInutes of settlement, contrary to the agreement. Further on balance of probabIlItIes, the umon argued that It IS lIkely that Ms KIng also knew about the umon leave granted to Ms RIttwage The umon argued that by allowIng Ms KIng to process the payments and learn of the umon leave, the mImstry had breached the confidentIalIty clause of the Apnl28 2003 3 memorandum of settlement. Further gIven the CIrcumstances of the ongInal gnevance whIch alleged a pOIsoned workplace, and that Ms KIng was part of thIS workplace, It was not appropnate to allow Ms KIng to Implement the payment to the gnevor The umon submItted that the board should find that the mImstry breached the settlement, and that the appropnate remedy would be to order the mImstry to pay the damages and gIve the umon leave days provIded under the settlement agaIn. In support of ItS submIssIOn the umon relIed on OP SEU (Young) andMinistlY of the Attorney General (2003) G S.B 2001-0660 (Abramsky) The Emplover's SubmIssIOn The employer took the posItIOn that there had been no breach of the memorandum settlement. Ms KIng IS the desIgnated admInIstrator for pay In the office Counsel submItted that It IS Ms KIng's Job to reVIew paycheques for accuracy Counsel noted that In order to Implement the payment to Ms RIttwage, Ms KIng and others had to process the necessary paperwork. Counsel argued that none of thIS amounted to dIsclosure to a thIrd party It was merely ImplementatIOn. The employer dIsagreed wIth the umon' s posItIOn that Ms KIng must have learned of the umon leave granted to Ms RIttwage under the settlement agreement. Counsel argued that there IS no eVIdence before the board to support such a findIng. In summary counsel argued that Ms KIng acts as a semor secretary handlIng confidentIal employee InformatIOn. As part of her Job the payment on the gnevor's cheque would have to be stamped, venfied and forwarded to Ms RIttwage Thus there had been no breach of the mInutes of settlement and no damages should be ordered DeCISIOn HavIng carefully consIdered the submIssIOns of the partIes, I have concluded that there IS no eVIdence to support a findIng that the mImstry breached the confidentIalIty clause of the Apnl 4 28 2003 settlement. For the most part the facts are not In dIspute It IS clear that Ms KIng normally processes pay cheques as part of her Job dutIes She receIves them from core pay checks them for accuracy and date stamps them, addIng the tIme In her own handwntIng. Ms KIng stamped and wrote on Ms RIttwage's the "payment statement" of May 8 2003 whIch Included a payment made pursuant to the Apnl 28 2003 mInutes The payment IS coded wIth "RT-GR SETA." Whether Ms KIng recogmzed thIS code or not, I do not know The employer and umon agreed that she would have recogmzed It as a payment made under a gnevance settlement. With regard to the umon days, the eVIdence IS not clear AssumIng that she dId see thIS, I am stIll not persuaded that the mInutes where breached by the employer As employer counsel pOInted out, these payments must be processed under the normal procedures - and thIS was done here There may be cases where It IS Inappropnate for the standard procedure to be followed and where the employer ought to ensure that no bargaInIng umt employee In the gnevor's workplace (as opposed to at shared servIces) be Involved In the proceSSIng. But the eVIdence here IS InSUfficIent to support such a findIng. It IS clear from the umon's submIssIOns that Ms RIttwage dId not lIke Ms KIng. However there IS no eVIdence to establIsh a "pOIsoned workplace" GIven the nature of the ongInal gnevance, It may have been better If only managers handled the ImplementatIOn of the gnevance settlement here However I am not convInced, In thIS case, that there IS sufficIent eVIdence before me to conclude that Ms KIng's handlIng of the InfOrmatIOn amounted to a thIrd-party dIsclosure of the confidentIal memorandum of settlement. 5 F or the reasons noted above the gnevor's complaInt that the memorandum of settlement has been breached IS hereby dIsmIssed. Dated at Toronto thIS 31 8t day of January 2005 ~ ~', .. .' , ~... . .'_ ._~.., . ,- ,_~I ,- _..". ,. --- : .'.. 0" .~ "" <\,' ,:,,:i~~r --:.';-- ~i>" ' ~ '"', ..,' . '~'..:,~:, ..' """ .". ." .. . . ""',".' ..:~ . .. . " .". ..,.Jili' ...,i. ~ D :'" ,.tri'...", e C Ir ,:".: - "::.- .~_ ,_0.,- ~_~ .. . .". , ..__" ~ ::- ~'.. ". . ......