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Home My WebLink About2017-0712 et al.Fields.18-07-13 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2017-0712; 2017-0713 UNION# 2017-0551-0009; 2017-0551-0010 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fields) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Janice Johnston Arbitrator FOR THE UNION Lori Davis Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel TELECONFERENCE June 19, 2018 -2- DECISION [1] This matter was scheduled for Mediation/Arbitration on March 20, 2018. At that time, the parties engaged in settlement discussions and with my involvement were ultimately able to settle the grievance. [2] There were three grievances at issue in this case. The grievances raised allegations of harassment and discrimination and health and safety violations. The Grievor was hired in 1997 and became permanent in 2002. She was employed as a Bookkeeper. [3] On March 20, 2018, the parties signed Minutes of Settlement (the ‘MOS”). As the MOS are confidential I will not set out the entire MOS but only parts. MEMORANDUM OF AGREEMENT BETWEEN: Ontario Public Service Employees Union (THE UNION) - and- Terry Fields (THE GRIEVOR) - and- THE CROWN IN RIGHT OF ONTARIO (Ministry of the Attorney General (THE EMPLOYER) WHEREAS the Grievor filed the above-noted grievances alleging that her work environment was poisoned and that she has been bullied and harassed; and NOW THEREFORE the parties agree to a full and final settlement of the above-noted grievances and to all matters with respect to the Grievor’s employment on a without prejudice and precedent basis, on the following terms: 1. The Grievor hereby irrevocably resigns and retires from the Ontario Public Service as of [deleted]. 2. The Grievor and the Union hereby withdraw the above-noted grievances as well as any other outstanding grievances filed by the Grievor and agree to notify the Grievance Settlement Board accordingly. -3- 3. The Grievor will be placed on a paid leave of absence as of the date of this Memorandum of Settlement [deleted] with no obligation and no right to attend the workplace. 4. Deleted 5. The Employer will pay the Grievor for any unused Vacation and Compensating Time Off credits owing to [deleted] and the Griever acknowledges and accepts that she will receive no other payments of any kind as a result of her resignation and retirement as set out in paragraph 1, above. 6. The Employer will make best efforts to pay the amounts in paragraph 5 within 45 days of [deleted]. 7. The Grievor acknowledges, with the advice of her union representative, that this Memorandum of Settlement constitutes full and final settlement of any and all claims, complaints, grievances or actions arising out of the Grievor’s employment or facts related to the Grievor’s employment or that the Grievor has or may have against the Employer, its representatives, employees and officials whether under any statute, regulation, policy, contract or at law, including but not limited to the Workplace Safety and Insurance Act, the Public Service Act, the Employment Standards Act, complaints under the Ombudsman Act, the Ontario Human Rights Code and any other employment-related statute. 8. The Employer by signing these Minutes of Settlement acknowledges and regrets any negative feelings the Grievor may have felt as a result of the facts underlying the above-noted grievances. 9. The terms of this written Memorandum of Settlement represents the complete settlement agreement between the parties in relation to the above-noted grievance and any related matters. The parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this written settlement other than arrangements for the Grievor to attend the workplace on March 21, 2018 in order to gather her personal belongings. 10. This Settlement and Release is confidential between the Parties and shall not be disclosed by any of them to any other person except for the purpose implementing or enforcing the terms of the Settlement and Release, to immediate family of the Grievor or where required by law. The Grievor agrees to advise her immediate family of the importance of this Confidentiality Agreement and to require them not to disclose the details to any other person. -4- 11. The Parties agree that Vice-Chair Janice Johnston shall remain seized to this memorandum of settlement for the purposes of interpretation and implementation. [4] An issue with regard to the interpretation of the MOS has arisen. On May 14, 2018, the Grievor first contacted Ms. Davis to complain that she had been informed that she would not be receiving severance pay. Through subsequent and further correspondence she informed Ms. Davis that: there was no discussion at the mediation regarding the forfeiting of her severance; when some of her colleagues retired, they received severance; had she known she was going to be required to forgo her severance, she would have gone on sick leave until her retirement. She claimed that her Doctor would have written her a sick note and she could have been off work on sick leave from March 20th until her retirement and received her severance pay. [5] Ms. Davis spoke to the Grievor and informed her that the MOS provided her with a lengthy paid leave of absence. During the leave, she was entitled to all benefits under the collective agreement and would accrue pension and vacation credits during this time. [6] A conference call was scheduled to deal with the complaint of the grievor on June 19, 2018. [7] I have carefully considered the submissions of counsel in coming to the conclusions that follow. [8] The language in the MOS is very clear in paragraph five that “the Grievor acknowledges and accepts that she will receive no other payments of any kind as a result of her resignation and retirement as set out in paragraph 1, above.” At the time that the MOS were signed, Ms. Davis made it very clear to the Grievor that in exchange for the significant and generous period of paid leave, plus the fact that she was entitled to all benefits under the collective agreement and would accrue pension and vacation credits during this paid leave, she would not receive -5- any other payments from the employer. I am satisfied that the Grievor was well aware that this was a final settlement and that no other monies, other than as provided for in the MOS, would be paid to her. She signed the MOS. [9] The settlement received by the Grievor is very generous and was the result of a great deal of back and forth between the parties. Ms. Davis did an excellent job in representing the Grievor’s interests during the mediation process. It is completely inappropriate for the Grievor to have taken the settlement and now seek to go behind it and make a claim for additional compensation. The MOS are binding on the Grievor, the Union and the Employer, and I am satisfied that pursuant to them the Grievor is not entitled to any additional payments from the Employer other than those set out in the MOS. [10] I shall remain seized in the event that there are any questions with regard to the interpretation of this award. Dated at Toronto, Ontario this 13th day of July, 2018. “Janice Johnston” ______________________ Janice Johnston, Arbitrator