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HomeMy WebLinkAbout3381-05-U - Holden 06-08-23 ONTARIO LABOUR RELATIONS BOARD 3381-05-U Terralyn Holden, Applicant v. OPSEU, Local 706, Responding Party v. Ministry of Transportation, Intervenor. BEFORE: Mary Anne McKellar, Vice-Chair. APPEARANCES: Terralyn Holden appeared on her own behalf; Steve Lavender and Jim o 'Brien appeared for the responding party; Len Hatzis, Rebecca Graham and Catherine Shaw appeared for the intervenor. DECISION OF THE BOARD; August 23, 2006 Introduction 1. This is an application under section 96 of the Labour Relations Act, 1995 ("the Act"). The applicant, Terralyn Holden ("Holden") alleges that the responding party trade union ("OPSEU") has contravened section 74 of the Act. The application was filed with the Board on January 10, 2006. 2. A consultation into this matter was held on August 17, 2006. At the commencement of the consultation I noted that Holden was not represented by counsel. I informed her that I would be pleased to answer any questions she might have about the Board's processes, but that I could not provide her (or any other party) with legal advice because that would be incompatible with my role as an impartial adjudicator. The Facts 3. Except where otherwise indicated, the following facts were not in dispute. 4. Holden was employed by the Ministry of Transportation ("MTO") from 1993 until her employment was terminated in September 2003. Throughout that period she was employed as a seasonal worker during the winter. She was employed in a bargaining unit represented by OPSElJ. 5. Holden competed for a full-time position with MTO but was not the successful candidate. This precipitated the filing of a grievance on her behalf in March 2003 ("the March grievance"). The grievance form speaks to the denial of employment opportunities on the basis of gender, but Holden referred to it throughout the consultation and in the documents she presented as the "harassment or discrimination" grievance. John O'Brien ("O'Brien") was the OPSEU steward who assisted her by preparing this grievance and dealing with it in the early stages. The documents provided to O'Brien by Holden more or less contemporaneously with the early stages of the March grievance set out a wide variety of complaints that Holden had about some of her co-workers and supervisors that extended back over her previous four years of employment, and no doubt contributed to her characterization of the March grievance as one related to harassment. The March grievance was referred to arbitration and scheduled for hearing in early November 2003. OPSEU assigned a grievance officer ("Gilbert") to represent Holden at the arbitration. -2- 6. In her application to the Board, Holden asserts that O'Brien compelled her to "water- down" her complaints for presentation to the MTO at a meeting on March 24, 2003 by saying, "if you want union representation you do what I say". Holden's own contemporaneous communications to O'Brien, however, contain absolutely no suggestion of any inappropriate controlling or threatening behaviour on his part. In a fax she sent to O'Brien on March 22, 2003, enclosing a "smaller version" of her complaint there is no suggestion that she is unhappy with his representation of her and she invites him to join her at the casino for a game of black jack. Additionally, in a fax she sent to O'Brien on April 22, 2003, Holden expresses dismay that Gilbert will be handling her grievance and describes O'Brien's conduct at a meeting with MTO as "very professional" and adds "I was very proud of you and don't want to lose you." OPSEU denies that O'Brien made any threats to Holden, but does agree that he asked her to reorganize her complaint. 7. In the spring and summer of 2003 the MTO was conducting an investigation into whether a "poisoned environment" existed at Holden's workplace. Holden also communicated with O'Brien about this investigation. In a fax she sent him on June 21, 2003, she expressed concern about meeting with the investigator ("Docherty") without union representation, and specifically without O'Brien's representation. She wrote, "I'm sorry to be bothering you with all this crap but your [sic] all I got to confide in. I truly adore you for sticking by me." 8. In the summer of 2003, MTO advised Holden in writing that it had been advised and would be making inquiries to determine if she had interfered with Docherty's investigation. She was asked to attend a meeting and to advise if she would have union representation. Holden indicated that O'Brien would be her representative. She continued to communicate with O'Brien in writing during September 2003 with no suggestion that she is not happy with his representation of her. As a consequence of Docherty's investigation and of MTO's inquiries about Holden's conduct with respect to it, MTO terminated Holden's employment effective September 26,2003. OPSEU filed a grievance on her behalf on September 29, 2003, which characterized her termination as an "unjust dismissal" and sought to have her reinstated with full back pay ("the termination grievance"). Holden alleges that O'Brien made her sign a blank grievance form and that the details were filled in later. OPSEU denies this and it is not apparent to me why it matters as Holden did not indicate any dissatisfaction with the content of what appeared on the grievance form, and the remedy sought is what she continued to assert throughout the consultation was her desired outcome. Furthermore, Holden continued to send facsimile transmissions to O'Brien, including one dated October 4, 2003 setting out her theory of why MTO wanted to fire her, namely jealousy of her secure financial position. As is the case with the others, this fax contains no suggestion that O'Brien has not behaved properly or that she does not have complete confidence in him. The termination grievance was also referred to arbitration. 9. Following the termination of Holden's employment, the hearing date scheduled for the March grievance was cancelled. There is some uncertainty about how this came about and Holden suggests that she wanted the hearing to proceed, but that Gilbert was not prepared and compelled her to agree to an adjournment. In my view, it is not necessary to address this issue further as it is clear that both grievances subsequently proceeded to hearing before the same Vice-Chair ("Harris") of the Grievance Settlement Board ("GSB"). By this time, OPSEU had retained a labour lawyer (Mackinnon) to present the case at arbitration. Both grievances were formally consolidated in March 2004, at which time some settlement discussions occurred, but they did not result in the resolution of the grievances (or either of them), which the MTO was prepared to settle by paying Holden $10,000 but not reinstating her. Holden alleges that - 3 - Mackinnon pressured her to accept this offer, but that she refused. Subsequent hearing dates were scheduled for October 4 and 5, 2004, and several other days as well. 10. The proceedings before Harris resumed on October 4, 2004. There are significant factual disputes about what occurred on October 4 and 5, 2004. At the consultation Holden maintained essentially that she was prepared only to have her grievances arbitrated and not to have them mediated or settled. In her application she asserted that she spent the whole day on October 4,2004 refusing to sign settlement documents and asking for the hearing to start and at the consultation she asserted that "no negotiations" took place and she was merely presented with a drafted settlement to sign. 11. By contrast, both OPSEU and MTO assert that the parties presented opening statements to the arbitrator on October 4, 2004, and then broke at his suggestion to pursue settlement discussions, which included proposals by MTO and counterproposals by OPSEU and Holden. A similar account is set out in the reporting letter that Mackinnon prepared and dated October 6, 2004 and sent to OPSEU on October 7, 2004. A Memorandum of Settlement was executed by MTO, OPSEU and Holden on October 5, 2004. It is clear on the face of the document that certain alterations were made to it after it had been drafted. These alterations have all been initiated by each of the three signatories, and in my view are conclusive evidence that at least some negotiation or continuing discussion of terms occurred. 12. In her pleadings Holden maintains that she was pressured into signing the Minutes of Settlement. She also maintains that she was repeatedly told that she would not likely be reinstated. Holden asserts (which OPSEU denies) that she was in tears when she signed the Minutes of Settlement and that she had no opportunity to seek advice. OPSEU notes that she had an entire evening (that of October 4, 2004) to seek advice about settling and further asserts that she was provided with an opportunity to consult a family member by telephone, but that that person could not be reached. Holden's application contains no assertion whatsoever that: (1) she did not understand that the negotiations were aimed at finally resolving the grievances; (2) she had no opportunity to review the Minutes of Settlement before signing them; or (3) that she did not know what she was signing. At the consultation, Holden asserted all of these things. 13. Holden also claimed to be unaware of what the consequences might be to her of either signing, or not signing, the Minutes of Settlement. I find this statement curious considering she had already refused to accept the settlement offer made in March 2004, and clearly the consequence of that was that the arbitration continued. I also found that Holden was evasive when questioned about her position on the accuracy of Mackinnon's reporting letter. Holden described it as "100% false" but then would not specify for me which parts she disagreed with, instead referring me to her "exhibits", none of which were actually created at the time of the arbitration hearing, and none of which had been provided to the MTO or OPSEU in advance of the consultation. There is one document that purports to be Holden's account of what transpired on October 4 and 5, 2004. It is not clear when it was prepared, but it appears to have been created in contemplation of the consultation. In any event, this document reveals (contrary to her verbal assertions at the consultation) that: (1) settlement negotiations were undertaken; (2) she understood the purpose of those negotiations; (3) Mackinnon prepared a variety of documents or proposals in this regard; and (4) Holden was clearly told that reinstatement was not an option in any negotiated settlement and that the arbitration could take a very long time and she could still lose. The document also reveals that while Holden may have believed that her case was a "100% winner", it is clear that Mackinnon at least expressed some doubts about this view. -4- 14. On October 6, 2004, Holden faxed a note to Mackinnon seeking to resile from the Minutes of Settlement, which were "taken under false pretence and duress". There is no assertion of "false pretence" in Holden's application, nor any particulars to support such assertion. The phrase, or a similar one, does appear in the statement Holden prepared for the consultation, but again, there are no particulars of any false representations she alleges were made to her by OPSEU, its representatives, or Mackinnon. 15. By letter dated October 15,2004, Mackinnon acknowledged receipt of Holden's fax, but indicated that OPSEU took the view that the Memorandum of Settlement was binding and that it was advising MTO that it should be implemented. 16. Holden asserts that she contacted a legal agent immediately after these events and that he agreed to file a section 74 application on her behalf. By June 2005 he had failed to do so. Within a week she had hired a lawyer, who also agreed to file a section 74 application on her behalf, but who did not do so until January 2006. Holden has provided considerable detail about her retainer arrangements with these two individuals and about her repeated attempts to get them to commence this proceeding. I do not find that it is necessary to repeat all of this information at length as neither OPSEU nor MTO was in any position to dispute its accuracy, and I am prepared to assume that it could all be established in evidence. Holden very candidly conceded that, contrary to the assertions in her former counsel's representations to the Board, she was never without representation on this matter for any period of time exceeding a week, nor was she ever financially or otherwise unable to secure representation. Holden does rely on her former agent's attempts to get HRDC to release certain information to her respecting her EI benefits claim and an alleged refusal by OPSEU to release to him her grievance file as contributing to the delay in the conunencement of this application. She also asserted at the consultation that she had communicated with OPSEU and Mackinnon respecting these matters in January 2005. The latter assertions were not included in her former counsel's representations respecting delay, and were set out by her for the first time at the consultation. 17. In her presentation at the consultation, Holden also raised for the first time in this proceeding certain other complaints she had about OPSEU's or MTO's behaviour towards her. I advised that these matters could not be relied on as they had not been properly pleaded and particularized in a timely fashion. As a consequence, I have not referred to any of these allegations in this decision. I have also not referred in any detail to certain allegations that are contained in her original application, but that relate to alleged errors and omissions in OPSEU's representation of her that occurred even before October 2004. My rationale for omitting reference to these matters is twofold: (1) they were not relied on by Holden in her oral presentation in which she agreed that the crux of her complaint was the circumstances in which the Memorandum of Settlement came to be executed; and (2) the matters are simply too remote in time to be litigated now, particularly in the absence of any explanation at all for why they were not complained of sooner. Analysis 18. Having had the opportunity to receive oral submissions from the parties, and to examine the documents relied on by Holden, I am of the view that her application must be dismissed. 19. Section 96 of the Act provides me with the discretion not to inquire into a complaint that the Act (in this case section 74 of it) has been contravened. I find that this is an appropriate - 5 - case in which to exercise such discretion and dismiss the application on the basis of delay, even assuming the accuracy of all of Holden's submissions on this issue. 20. Holden's application was filed with the Board more than 15 months after the Memorandum of Settlement was executed. A delay of sueh magnitude demands a compelling explanation that dispels the presumption that OPSEU has been prejudiced. Holden's only explanation is that the representatives she retained did not act in a timely way on her behalf. I agree with her assertion that that is not her personal fault and that it is unfortunate for her. Equally clearly, however, it is not the fault of MTO or OPSEU. They should not be exposed to any liability because of the conduct of her representatives. Despite the attempts by Holden's former counsel to attribute part of the delay to OPSEU on the basis that it did not provide timely disclosure of documents, the simple fact is that this case turns entirely on the participants' recollection of what occurred on October 4 and 5, 2004 and how those events are to be legally characterized. Holden was there. She knows what occurred. She was in a position to particularize and file her complaint the moment OPSEU communicated to her that it took the view the Memorandum of Settlement was valid. Indeed, that is precisely when she retained a legal consultant to do just that. In a case that is factually quite similar to this one, the Board in Aluminum, Brick & Glass Workers International Union, Local 260G, [1991] O.L.R.D. No. 407, dismissed an application where the delay of 15 months was attributable to the conduct of the applicant's legal representatives. 21. In addition to being susceptible of dismissal on the basis of delay, I find that this application is also susceptible of dismissal on the merits. At the consultation, I advised Holden that I was not aware of any case in which the Board has not concluded that a grievor should be bound by a settlement document he or she has executed. While the Board's caselaw recognizes that the circumstances in which grievances are settled are often emotionally stressful for the grievor and may involve time constraints or strong recommendations from union representatives, those factors have never led the Board to "undo" a settlement. In this regard, I agree with the caselaw submitted by both MTO and OPSEU to the effect that a party to a settlement is bound to it unless he or she can demonstrate a lack of capacity to understand the nature of the document they were signing. See TRW Automotive (Kelsey-Hayes Canada Ltd.), [2000J OLRB Rep. July/August 731 at paragraph 14. 22. Before me, Holden did not assert any lack of capacity. Her contemporaneous written communications with O'Brien evidenced complete familiarity with the world of legal issues and various legal forums (the courts, arbitrators, the Ombudsman, the Human Rights Commission). Holden asserted to me only that she was pressured to settle and that she did not read the settlement documents, although as I have noted, her failure to read them (or to have an opportunity to do so) is an allegation that was inexplicably absent from her original application, inconsistent with her written recollection of the arbitration, and incongruous behaviour from a woman I found to be extremely forceful and tenacious in her assertion of her rights before me. 23. Finally, I would note that the terms of settlement on their face seem reasonable. The dollar value of the settlement is more than triple what Holden had been offered in March 2004, and the non-monetary terms include: the provision of a letter of reference; the purging of all information pertaining to Docherty's investigation from her personnel file; and an expression of regret by MTO for any offence its actions may have caused to her. Despite my express and repeated invitations to her to do so, Holden did not make any oral submissions disputing the accuracy of Mackinnon's reporting letter, which included the following paragraph describing the parameters of MTO's maximum potential liability and the monetary terms ultimately incorporated in the Memorandwn of Settlement: - 6 - After receipt of the employer's "best offer", we made some language revisions, which the Employer agreed to. We then awaited instruction from Ms. Holden about making a counter-proposal to the amount of severance and damages. In discussion with the grievor and John O'Brien, and subsequently with the Vice-Chair, the maximum exposure the Employer would have faced, had it been ordered to return her to work and pay her for six months work, plus damages for discrimination, plus potentially an amount in lieu of reinstatement, would have been approximately $40,000.00. Ms. Holden instructed us to counter-offer with a total of $50,000.00, $25,000.00 in severance and $25,000.00 in damages. The Employer responded by proposing to pay $25,000 in severance, plus $7,000.00 in damages, plus making the contribution toward the pension for the six month period during which Ms. Holden would have been employed in the 2003-2004 season (a cost of approximately $1,000.00), for a total counter-offer of approximately $33,000.00. 24. Finally, it is my view, which I expressed to Holden at the consultation, that the remedies she has requested in this proceeding are not ones the Board would likely order even assuming it had the ability to do so, which in at least two respects it does not. Those remedies were: a substantial award of damages; her legal costs of this proceeding; and an order that the arbitration of her grievance proceed before a different Vice-Chair of the Grievance Settlement Board. 25. In short, my view is that there is no merit to this case, even if one assumes the accuracy of Holden's verbal assertions, which it is difficult to do given some of the inconsistencies I have noted between what she said at the consultation and what is recorded in both her contemporaneous correspondence relating to these matters and her written account of the events of October 4 and 5, 2004. Decision 26. For all of the above reasons, this application is dismissed. "Mary Anne McKellar" for the Board