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HomeMy WebLinkAbout2004-3434.Smith.05-09-09 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# 2004-3434 UNION# 2005-0247-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (SmIth) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty Safety and CorrectIOnal ServIces) Employer BEFORE Nimal V DIssanayake Vice-Chair FOR THE UNION GavIn Leeb Barnster and SOlICItor FOR THE EMPLOYER Andrew Baker Counsel Management Board Secretanat HEARING August 8 2005 CONFERENCE CALL August 11 2005 2 DeCISIon This decision pertains to a discharge gr1.evance dated January 6, 2005 filed by Ms Kellie Smith, a casual correctional officer At the commencement of the hearing, the employer moved that the Board lacked jurisdiction to deal with the gr1.evance because a pr1.or gr1.evance dated December 10, 2004 filed by the gr1.evor with respect to the same discharge had been settled by minutes dated December 13, 2004 signed by the employer, the union and the grievor The union's position was two-fold It was submitted that the December 13, 2004 document titled "Memorandum of Agreement" was not on its face a typical settlement of grievance, and ought not be treated as such Alternatively, the union submitted that in any event such settlement ought not bar the grievor's right to gr1.eve her discharge, because at the time she signed it she was under such stress due to her personal circumstances, that she signed it under "duress" The un1.on urged me to hear the evidence with regard to "duress" and determine, whether 1.n the circumstances, the settlement 1.S binding on the gr1.evor The employer opposed any inquiry into the issue of duress, and urged 3 the Board to uphold the settlement document as a complete bar to the instant grievance At the request of the parties, a "bottom line" decision was issued on August 16, 2005 wherein the Board held that the December 13, 2004 document was a valid and binding settlement of the grievor's first gr1.evance, which barred a subsequent gr1.evance with respect to the same discharge Accordingly, the Board upheld the employer's motion that it was without jurisdiction to deal with the second gr1.evance This decision is intended to set out the reasons for the Board's decision The following facts are not 1.n dispute By letter dated December 10, 2004, the grievor's emploYment was terminated The grounds for termination were reviewed 1.n detail 1.n the letter, but are not relevant here The same day the gr1.evor filed a gr1.evance alleging that she had been unjustly terminated, and seeking reinstatement and compensation for all lost monies On December 13, 2004 the following "Memorandum of Agreement" was executed 4 MEMORANDUM OF AGREEMENT Kellie Smith Name Correctional Officer, Brantford Jail Classification/Work Location ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) - AND - THE CROWN IN RIGHT OF ONTARIO (Ministry of Community Safety and Correctional Services - Correctional Services Division) (The Ministry) Whereas the Parties agree to settle all matters ar1.s1.ng out of during the course of Ms Kellie Smi th' s term of emploYment and the termination of such emploYment, the parties hereby agree to the following minutes of settlement 1 This agreement 1.S made without admission of liability or wrongdoing by any party, and any liability is expressly denied 2 The Parties agree that this settlement 1.S without precedent or prejudice to any other matters between the Parties 3 The Parties agree that Ms Smith's (sic) will res1.gn effective the date of the s1.gn1.ng of this agreement 5 4 The Ministry agrees to provide the employee with sixteen ( 16) weeks notice Said notice will be based on the average hours worked over the three month period leading up to the s1.gn1.ng of this agreement Notice will be subject to statutory deductions and will be payable within 30 days of the s1.gn1.ng of this agreement 5 The Ministry agrees to a net paYment to Ms Smith of $1,500 00 for education and related expenses The net paYment will be made as soon as 1.S possible and will be sent by cheque to Ms Smith's home address of (address deleted) 6 The Union and Ms Smith agree that all gr1.evances, claims, complaints and actions ar1.s1.ng out of Ms Smi th' s emploYment with the Ministry including all complaints before the Ontario Labour Relations Board and the Workplace Safety and Insurance Board and the Ontario Human Rights Commission and the Grievance Settlement Board 7 Ms Smith agrees not to seek reemploYment with the Ministry of Community Safety and Correctional Services 8 Ms Smith agrees that she has been fully informed of and understands the consequences of this settlement, enters into it voluntarily, and further agrees that the Union has fairly and properly represented her 6 9 PaYment will be received no later than December 30, 2004 Dated this 13 day of December, 2004 "Signed illegibly" "Signed illegibly" "Signed illegibly" For the Grievor For the Union For the Ministry There 1.S no dispute that the gr1.evor had un1.on representation preceding the execution of the Memorandum, which was signed by the gr1.evor, an employer representative and a un1.on representative It 1.S also agreed that the employer implemented the undertakings it made 1.n the Memorandum, including the paYments of the monetary amounts under paragraphs 4 and 5 The instant gr1.evance was filed on January 6, 2005 The statement of grievance therein states "I gr1.eve that I have been dismissed from my contract position and that it was not my intention to quit or resign my position Decision to res1.gn was made under extreme stress" In this subsequent gr1.evance also, the grievor sought reinstatement, among other remedies 7 The un1.on did not dispute that both gr1.evances related to the same discharge However, the un1.on argued that 1.n the particular circumstances of this case the Memorandum should not be held to bar the grievor's right to gr1.eve her discharge by a second grievance The un1.on stated that it will lead evidence to establish the following In March of 2004 the grievor's 3 young children had been taken away by the Childrens Aid Society In August 2004, her husband left her In and around December 2004, the gr1.evor had difficulty getting access to see her children, or even having telephone contact with them Although the children were returned to her 1.n January 2005, at the time she was discharged, she had no idea when she would get them back She was therefore under tremendous stress It was her determination at the time that if the record showed that she had resigned from her job, rather than been terminated, her chances of getting the children back from the Childrens Aid Society were better This belief greatly influenced her decision to agree to the terms of the Memorandum of Agreement 8 The un1.on submitted that once the foregoing facts are established, it would lead the Board to conclude that at the time the gr1.evor agreed to and signed the memorandum, she did not have the capacity to make a rational and sound decision The union made two submissions 1.n support of its position that the second gr1.evance was arbitrable Mr Leeb submitted that the un1.on did not dispute that an agreement entered into between the employer and the un1.on 1.S, as a general matter, binding However, he contended that it was not clear what the memorandum purported to do He submitted that the memorandum should be treated as an agreement to res1.gn on the part of the gr1.evor, as opposed to a settlement of a gr1.evance On that basis he submitted that the law 1.S clear that a quit or resignation 1.S not g1.ven effect to, 1.n circumstances where the evidence 1.S that the decision to quit or reS1.gn was made under stress and duress He urged me to hear that evidence and determine whether or not the gr1.evor had the capacity to make a voluntary decision at the time she signed the Memorandum The employer was opposed to the Board hearing any evidence of duress on the part of the grievor It was submitted that the 9 only 1.ssue the Board had to determine was whether or not the "Memorandum of Agreement" was a settlement of the grievor's first gr1.evance Once it 1.S found to be such a settlement, it constitutes an absolute bar to any subsequent gr1.evance challenging the same dismissal Unlike 1.n the case of an indi vidual's decision to quit or res1.gn, personal circumstances of a gr1.evor are irrelevant 1.n the case of a settlement of a gr1.evance A simple reading of the Memorandum indicates that it 1.S a very poorly drafted document For example, it does not identify a particular gr1.evance Some sentences, for example para 6, are disjointed or incomplete However, that 1.S not unusual because these documents are often drafted 1.n haste and by untrained persons Despite these deficiencies, there can be no doubt that the document 1.n question, when read as a whole, was intended to be and 1.S, a settlement of "all matters ar1.S1.ng out of (sic) during the course of Ms Kellie Smi th' s term of emploYment and the termination of such emploYment", including the gr1.evance the gr1.evor had filed 3 days earlier The intended terms of resolution are also clear Therefore, any submissions made by the union 1.n support of the board's jurisdiction to hear 10 the subsequent gr1.evance, must be considered 1.n that light It 1.S not at all uncommon for gr1.evance settlements to include a term wherein the employer undertakes to change the termination to a resignation The inclusion of such a term does not convert the document from a settlement of a gr1.evance to a mere agreement by the grievor to quit or resign Mr Leeb referred me to a number of GSB decisions incorporating Minutes of Settlement of gr1.evances, where terms have been included wherein the gr1.evor explicitly acknowledges that he/she was s1.gn1.ng the minutes "voluntarily and without duress" It was submitted that this suggests that the parties considered the absence of duress on the gr1.evor to be a necessary condition for the validity of the Minutes I disagree First, there 1.S no evidence as to why and for whose benefit such term was included 1.n the particular case It 1.S just as possible that the term was included for the benefit of the union to protect it against later claims by the grievor that he or she was unduly pressured by the un1.on to agree to the minutes Second, and 1.n any event, the 1.ssue of whether duress of the grievor invalidates a gr1.evance settlement is a matter of 11 law The law cannot be gleaned from what the parties mayor may not have included in particular documents In the Board's V1.ew, whether the grievor's signature was placed on a gr1.evance settlement under personal stress or duress 1.S irrelevant to the legal validity of Minutes settling a gr1.evance This 1.S because, 1.n the board's V1.ew, a grievor's signature 1.S not a necessary condition for the validity of Minutes settling a gr1.evance In Re Smith/Smith, 1278/99 (Harris) no formal Minutes of Settlements were signed off However, a Board decision incorporated the terms of settlement the parties had arrived at following mediation, and made an order 1.n accordance with those terms One of the gr1.evors subsequently applied for judicial reV1.ew of the Board order The Court 1.n a unan1.mous judgement released May 16, 2003 dismissed the application on the grounds that an individual gr1.evor had no standing to seek judicial reV1.ew The Court wrote 12 [12] the dispute arose out of Mr Smith's position as an employee and as a result of the purported termination of his emploYment The "management rights" clause 1.n the collective agreement g1.ves management the power to hire, to layoff or to dismiss This 1.S what it said it was doing Whether it was entitled to do so, or whether if it were, it did so properly, are matters that fall under the collective agreement for gr1.evance purposes and can only be pursued by the Union bargaining agent [13] Thus, the 1.ssues were properly before the GSB Had there been a hearing that Board would have been entitled to determine whether the Assistant Deputy Minister had properly delegated authority 1.n purporting to dismiss Mr Smith and, if not, what consequences should follow from that The Board 1.n such circumstances may have decided the purported termination was void ab initio We do not think such a decision would have deprived the GSB of "jurisdiction" however Rather, it would simply follow that there was no need to deal with the gr1.evance on its merits as the purported dismissal was void from the outset The Board has authority to determine its own jurisdiction The determination of those questions would still fall within the purv1.ew of a gr1.evance under the collective agreement concern1.ng the termination of Mr Smi th' s emploYment [14] In this case, however, the GSB was not required to make such a decision The Union and the Employer reached a settlement and the Vice- Chair of the Board, who acted as mediator 1.n respect of the negotiations was justified 1.n 13 the circumstances 1.n assum1.ng that role and, once the settlement was reached, 1.n incorporating its terms into an order as requested by the parties [15] As a member of the bargaining unit whose complaint regarding his purported termination was properly pursued by the gr1.evance process set out 1.n the collective agreement and before the Board, Mr Smith 1.S bound by that settlement and order Only the parties to the collective agreement may pursue that emploYment-related grievance [16 ] Accordingly, Mr Smith has no standing to pursue this application for judicial reV1.ew It is therefore dismissed The foregoing judgement supports the proposition that only the union can pursue a grievance under the collective agreement, and that once the parties to the collective agreement, that 1.S the employer and the un1.on, settle a gr1.evance, the individual gr1.evor has no standing to challenge the settlement If the un1.on solely can pursue a gr1.evance, it logically follows that it also has the authority to settle such gr1.evance The court's decision that a gr1.evor had no standing to challenge a settlement through an application for judicial reV1.ew 1.S consistent with the proposition that the gr1.evor 1.S not a necessary party to a gr1.evance settlement In the present case the un1.on did settle and has not resiled from its decision to 14 settle Thus, the necessary parties to the grievance, the union and the employer, have settled the gr1.evance That settlement is binding on the grievor This, of course, does not mean that a un1.on has no responsibility towards the gr1.evor The Labour Relations Act requ1.res that 1.n representing employees a union must not act 1.n a manner that is arbitrary, discriminatory and in bad faith In the present case there 1.S no allegation that the union failed to comply with this duty of fair representation Even if there were such allegations, any complaint 1.n that regard must be directed to the Ontario Labour Relations Board If such a complaint 1.S successful before the Labour Relations Board, it will be up to that Board to fashion a remedy for the employee as it deems fit In summary, the Board finds that the grievor's initial termination gr1.evance was settled The settlement 1.S valid and binding regardless of the validity of the grievor's signature, S1.nce it was duly signed by the necessary parties to the gr1.evance, namely the employer and the un1.on It follows that the gr1.evor was not subsequently entitled to file a second gr1.evance over the same termination The Board 1.S without 15 jurisdiction over the instant gr1.evance, and it 1.S hereby dismissed Dated this 9th day of September, 2005 at Toronto, Ontario ~~ . . ,.... , .. .. ... ... . . . , ~ . . . -, ~ " 'Ni" ",,", ,':":';",' ',' ":~:~". Vice- erson