HomeMy WebLinkAboutMelcher 21-03-12In the Matter of an Arbitration
Between:
Ontario Public Service Employees Union, Local 441
And
Developmental Services Leeds and Grenville
Grievance of Shane Melcher
Andrew Tremayne, arbitrator
Appearances
Jorge Hurtado for the union
Christopher Edwards for the employer
Hearing held on March 5, 2021 (by videoconference)
Award released on March 12, 2021 at Ottawa, Ontario
1. This is a decision on a motion by the employer for a declaration and other
remedies following a breach of Minutes of Settlement. There is no dispute that the
grievor breached the Minutes of Settlement, and the union does not oppose the
employer’s request for a declaration accordingly. However, the union opposes the
additional remedies requested by the employer.
2. The union asked that I anonymize the grievor in this decision, arguing that it
would be unduly harsh and detrimental to the grievor’s future if his name appears in this
decision. The employer opposed this request.
3. There is a presumption favouring publication of a grievor’s name in arbitration
awards. This is in keeping with a general practice that is followed by adjudicative bodies,
commonly referred to as the “open court principle.” This presumption can be rebutted if
there is a competing privacy interest and compelling evidence that naming the grievor (or
other parties) would create a substantial risk of harm or injury.
4. In this motion, I was not provided with any authorities in support of the
proposition that the interests identified by the union are sufficient to displace the
presumption in favour of naming the grievor in this decision. I also note that the grievor’s
breach of the MOS has led the parties to return before me. As a result, I decline to
anonymize the grievor in this decision.
5. By way of background to the employer’s motion, the grievor’s employment was
terminated on June 25, 2020. The union filed a grievance on his behalf, and the matter
was referred to arbitration. I was appointed by the parties to hear and determine the
grievance beginning on November 2, 2020. At the start of that day’s proceedings, I
agreed to mediate the dispute. The matter was resolved, and the parties entered into
written Minutes of Settlement (referred to as the “MOS”). The MOS is not confidential
and is not without prejudice or precedent. The grievor is named as a party to the MOS
and also signed it. I remained seized.
6. The relevant parts of the MOS are set out below:
NOW THEREFORE the parties agree as follows:
1. The Employer will issue a letter in the form attached hereto as Appendix
"A" on the Employer's letterhead within five (5) days after receipt of the
Grievor's executed Minutes of Settlement;
2. Any and all inquiries with respect to the Grievor's employment will be
directed to Krista Beaupre, HR Manager, or her designate or successor
and answered consistent with the letter attached hereto. The Grievor is
prohibited from naming any other employee of the Employer as a
reference;
3. The Union and the Grievor hereby withdraw the Grievance;
4. The Employer will take steps to seal the Grievor's file which will not be
released save and except as may be required by law or an Order of a
Court of competent jurisdiction;
5. For the consideration, the Grievor hereby forever releases and discharges
the Employer with respect to any and all claims arising out of his
employment or the termination thereof including claims for wages,
benefits, overtime, or notice of termination or any entitlements under the
Employment Standards Act, 2000. He confirms that he has no claims or
grievances of any kind or nature.
6. The Grievor hereby acknowledges that he has been fairly represented by
the Union with respect to the Grievance and these Minutes of Settlement.
7. Arbitrator Andrew Tremayne shall remain seized of any matter relating
to the implementation, interpretation, or alleged violation of this
Memorandum of Settlement.
8. This Memorandum of Settlement may be executed in identical
counterparts, exchanged electronically. Together a fully executed copy of
this Memorandum of Settlement shall be enforceable in the same manner
and to the same extent as a signed original.
[emphasis added]
7. The letter issued by the employer (Appendix “A” to the MOS) is extremely brief.
It says that the grievor worked at the employer and in what position. The letter makes a
few favourable comments about the grievor, then states, “the circumstances of his
departure from the agency are confidential and we are unable to discuss these
circumstances.”
8. In January 2021, it came to the employer’s attention that the grievor breached
paragraph 2 of the MOS. Specifically, the employer learned that the grievor requested a
reference from an employee (i.e., one of the grievor’s former co-workers) and that a
reference was provided to a prospective employer. Counsel for the employer notified
counsel for the union and the undersigned accordingly. Union counsel was able to
provide the names of two employees put forward by the grievor as references. Union
counsel also advised that no letters of reference exist, but he could not provide additional
details about whether verbal references were provided and, if so, what was said, and to
which prospective employers.
9. The employer requests the following decision and orders:
1. That the Grievor has breached paragraph 2 of the Minutes of Settlement;
and
2. That the Grievor and/or the Union is required to produce full particulars
of the organization the references were provided to by Luisa Zufelt,
Inclusive Child Care Resource Consultant and Mallory Manser,
Youth/Adult Community Counsellor, including the dates and times and
name of the employee(s) of the prospective employer that these DSLG
employees spoke together with a summary of the information provided to
the prospective employer by each employee if their references were
required verbally.
10. As stated above, it is not disputed that the grievor breached the MOS, and the
union does not oppose the employer’s request for a declaration accordingly. This
addresses the employer’s first request, which is granted.
11. The employer’s second request, which the union opposes, is less straightforward.
The employer argues that the terms of the MOS are clear, and the grievor breached
paragraph 2. The breach was blatant, and the terms of the MOS were carefully crafted to
allow the employer to control the messaging around the grievor’s departure because,
among other things, the employer was very concerned about managing its legal and
reputational risks.
12. The employer submits that it needs the information in the second part of its
request to understand the gravity of the breach of the MOS. The information resides in
the two employees, who are the grievor’s former co-workers and members of the same
bargaining unit to which the grievor belonged. The union is a party to the MOS, and it
has an obligation to assist the employer get to the bottom of the grievor’s breach. The
employer does not know what the two employees who acted as referees said to the
prospective employer. The employer could be exposed to risk, particularly if the referees
provided information that was not true.
13. The union submits that the employer’s request falls outside my jurisdiction. The
union has already given the employer all the information within its control, and I cannot
order the union to perform an investigatory function or interview non-parties.
14. A board of arbitration cannot order a party to produce documents to which it does
not have access or over which it has no control, nor can it order a party to create
documents, submits the union. Here, I would be ordering the union to create statements
or documents for the employer, which is beyond my jurisdiction. The union relies on
Labourers' International Union of North America, Local 837 v. Modern Mosaic Ltd.,
2020 CanLII 59507 (ON LRB); Karl Hannan v. Lance Burnham o/a Blue Mountain
Cider & Director of Employment Standards, 2015 CanLII 19167 (ON LRB); George
Brown College of Applied Arts and Technology v. OPSEU, Re, 2016 CarswellOnt 16328,
[2016] O.L.A.A. No. 379.
Decision
15. There is a public interest in encouraging parties to settle their disputes, and this
interest is enshrined in the Labour Relations Act, 1995. Among the purposes of the
Labour Relations Act, 1995 are to "encourage co-operative participation of employers
and trade unions in resolving workplace disputes" and to "promote the expeditious
resolution of workplace disputes."
16. Section 48 (15) of the Act specifically provides that an arbitrator may enforce the
written settlement of a grievance. If arbitrators did not enforce settlements, this would
introduce uncertainty into the process. Parties’ confidence in their agreements' integrity
would deteriorate, which would discourage parties from making the compromises
necessary to resolve their disputes. This would be contrary to the public interest in
encouraging settlements.
17. In this matter, the parties turned their minds to the enforcement of the MOS when
they negotiated it because it says that the undersigned “shall remain seized of any matter
relating to the implementation, interpretation, or alleged violation of this Memorandum
of Settlement.”
18. On November 2, 2020, the parties and the grievor signed the MOS. Its terms,
including Appendix “A,” were carefully crafted to meet the interests of all parties who
signed it. The grievor, who breached the MOS, remains bound by it, as does the union.
19. Specifically, the employer is entitled to rely on the commitments that “any and all
inquiries with respect to the Grievor's employment will be directed to [HR Manager] and
answered consistent with the letter attached hereto” and that “the Grievor is prohibited
from naming any other employee of the Employer as a reference.” Here, rather than
seeking the enforcement of the MOS per se, the employer is requesting that the union be
directed to inform itself about the extent of the grievor’s breach of this provision and then
provide this information to the employer.
20. Having carefully considered the parties’ submissions, I am unable to agree with
the union’s position. The cases cited by the union, which have more to do with the
appropriate test for pre-hearing production and its application on the specific facts of
those cases, do not address circumstances in which a party is seeking information
following the breach of a settlement. Here, the employer’s request is not a request for
production, pre-hearing or otherwise. Rather, it is a request for particulars or additional
particulars regarding the facts and circumstances of an acknowledged breach by the
grievor of the parties’ MOS.
21. The employer is not asking the union to create information. It is asking the union
for information that already exists. The union is being asked to gather this information
from its members, whom the union represents in an exclusive bargaining relationship
with the employer. In my view, this is not materially different from asking a party to
provide particulars of its position to ensure the fairness and efficiency of a hearing.
22. However, I have difficulty seeing how this information will assist the employer in
assessing and managing the legal and reputational risks arising from the grievor’s breach
of the MOS. The evidence before me is that two fellow members of the grievor’s former
bargaining unit gave verbal references on his behalf to a prospective employer. These
referees do not act in a leadership capacity for the employer, and they are not managers.
As members of a bargaining unit, they do not function in any capacity relating to labour
or employment relations on behalf of the employer.
23. When the MOS was drafted, the employer had legitimate concerns about its legal
and reputational risks due to the circumstances of the grievor’s departure. The terms of
the MOS allowed the employer to control the messaging around what was said about
these circumstances. The MOS (including Appendix “A”) was carefully drafted to protect
the employer’s interests, and the only “official” message that was authorized by the
employer about the grievor’s work history is Appendix “A” to the MOS.
24. Although the grievor has breached the MOS by asking two former co-workers to
provide references for him, I find that these events, as they have unfolded, do not give
rise to the risks that the employer has identified as the basis for the prohibition against the
grievor naming any other employee as a reference. It is difficult to see how verbal
references given by bargaining unit employees who are, by definition, not managers
could affect the employer’s reputation or raise any concerns about liability for the
employer. As a result, I decline to grant the employer’s request for a remedy in addition
to a declaration.
Disposition and Remedies
25. In summary, the following remedies are granted for the grievor’s breach of the
MOS:
a. A declaration that the grievor has breached the MOS.
Signed at Ottawa, Ontario on March 12, 2021
Andrew Tremayne