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HomeMy WebLinkAbout1994-0232.Sidhu.22-03-28 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB#1994-0232 UNION#1994-0518-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sidhu) Union - and - The Crown in Right of Ontario (Ministry of Agriculture, Food, and Rural Affairs) Employer BEFORE Bram Herlich Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Katherine Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING February 8, 2022 - 2 - Decision [1] In view of the prior agreement of the parties and the subsequent terms of my previous directions in this case, the hearing in this matter was conducted in a fashion akin to that prescribed under Article 22.16 of the collective agreement. As a result, while my determination will be binding upon the parties with respect to the matters currently under dispute, my award will be without precedential value. [2] Once again, the grievor in this case seeks remedies from this Board because of alleged breaches by the employer of its obligations under the terms of settlement documents (the original settlement was later amended) that bind the parties. [3] The history of this matter and the details and shape of the alleged violations have been set out in the last decision in this matter, dated May 19, 2019. I will not review that history in great detail again except to the extent necessary and to note that the essential parameters of the alleged breach are the same now as then. [4] The original settlement was executed 2003 and provided, in part (at para 5): The Employer agrees to provide the Grievor, Kam Sidhu, their employee and OPSEU member, with copies of the Topical I Job Mart, or there [sic] substitutes or replacements, delivered to the Grievor’s home promptly upon issue, commencing from the date of the execution of this settlement. This will allow the Grievor, Kam Sidhu, the opportunity to apply for any Article 6 and 8 positions to which she may choose to apply; [5] Four years later, following allegations brought before this Board of non-compliance with the settlement, the parties agreed to add the following sentence to the above paragraph of the original settlement: The Employer agrees to provide hard copies of the above by Courier to the Grievor’s home. [6] In retrospect, the employer may well view the bargain (and, in particular, the 2007 amendment) it made as improvident. When the obligations were first entered into, electronic communication and email were not as ubiquitous as they have become. One might wonder whether any agreement currently brokered would necessitate indefinite weekly courier delivery of documents, when such a goal can generally be effected so easily and efficiently by instantaneous electronic communication. (I note that even the grievor has progressed along the inevitable path to technological competence, attending the last hearing, held virtually by way of - 3 - videoconference.) In any event, to comply with its legal obligations under the settlement, the employer, for over 19 years now, has dutifully delivered the documents in question. In the last 14 to 15 years, it has weekly consigned delivery to a leading courier company. Thus, in rough terms, some 1000 separate deliveries have been effected. There may from time to time have been some irregularities in delivery, a handful in some of the prior complaints and five alleged instances in the current complaint. [7] It is important to recall that the current five alleged instances represent an impressively small proportion (approx. 0.5%) of the total deliveries that have been made. Even if these alleged instances are expressed only as a proportion of deliveries made since the last award (May 29, 2019) until the instant hearing (February 8, 2022), successful deliveries have been effected in approximately 96.5% of the roughly 140 deliveries over that period. And this is without descending into the territory of whether the alleged breaches – whether by virtue of conflicting evidence and/or the extent of the employer’s legal obligation once it, in good faith, consigns delivery to a third party – can be established. And for reasons that will become clear, I have found it unnecessary to enter that terrain. [8] The last decision in this matter (at para 28B) directed as follows in the event of any future similar allegations of breach of settlement: Should any such similar claim be advanced, the union and the grievor are hereby directed to, not later than 60 days prior to any hearing date, file full and complete particulars with the Board, with a copy to the employer, including, but not necessarily limited to, the following: i. Full details of the alleged breach ii. A concise summary of the evidence that would be tendered by its witness(es), should such testimony be permitted iii. Copies of all documents upon which it intends to rely iv. Complete details of when and how the alleged breach came to the attention of the grievor and what steps she took when to have the matter brought to the attention of the employer. - 4 - [9] The union complied with the filing requirements, and it is largely based on those filings and the submissions of the parties that the present decision is made. [10] But first, I observe that the parties’ bargain is not simply an independent free- floating obligation on the employer to deliver copies of job ads by courier to the grievor every week. This delivery, by the terms of the parties’ agreement is for a specific purpose: to “allow the Grievor… the opportunity to apply for any…positions for which she may choose to apply”. I cannot ignore the purpose of the bargain in assessing the grievor’s claim. [11] For the reasons that follow, I have concluded that this complaint should proceed no further. [12] The grievor has not (neither in the instant complaint nor in any of its predecessors) identified a single advertised job for which she would have applied, let alone one in which any such application might have had the remotest prospect of success. (The grievor has been out of the workplace for close to 20 years). [13] Indeed, in the instant case (as in the previous one), there is nothing to suggest that the grievor has seen or even sought to see the job ads which she complains were not delivered to her. In relation to each of the individual alleged failures to deliver job postings, the grievor’s pleadings contain the requisite “the grievor believes that there were positions she may have applied for”. However, in the absence of any identification (indeed, of any effort to make any identification) of a single posted job the grievor would have applied for, there is simply no objective basis to support these “beliefs”. [14] There are two instances where the complaint was not non-delivery but, rather, late delivery. In one of these, the employer’s defence may be at its most vulnerable – there appears to be no dispute that delivery was delayed, to perhaps even after the application deadlines for the postings in question. The grievor’s pleadings assert that “there were positions the grievor may have applied for”. However, even in this case, where the assertion is not premised on “belief” and where the grievor had possession of the postings, there is, again, nothing in the union’s materials to suggest what positions (if any) the grievor “may” have applied for. [15] This latter complaint regarding late delivery was not brought to the employer’s attention until approximately one month after it occurred. In the grievor’s practice, that was prompt notification. In the cases of alleged non-delivery and the other case of alleged late delivery, the notification to the employer of any alleged breach of settlement ranged from approximately two to eight months. - 5 - [16] Leaving aside questions of timeliness (which the employer legitimately raised), I believe all these delays are significant for other reasons as well. [17] The grievor has now received some 1000 weekly deliveries. She can recognize, within a matter of days, the relatively rare occasion, when a delivery may have gone astray or been delayed. A rational and reasonable person, acting in good faith, eager to review postings to identify possible application opportunities, would quickly contact the employer to insure prompt delivery. There is no suggestion that the grievor has ever done this. In the face of repeated allegations of employer non- compliance, a pattern emerges suggesting that the grievor simply waits to collect a bundle of allegations of non-compliance and then brings them forward after it is too late (even apart from any formal questions of timeliness) for the problem to be resolved. This concern applies equally to at least one of the two allegations of the poor print quality of documents. The employer neither asserted nor asked me to find the grievor has acted in bad faith. It remains an open question. [18] Since the initial settlement in this matter, the grievor, for close to 20 years now, has been and continues to be in receipt of long term disability benefits. She is totally disabled. Although there was nothing in the materials filed to support the claim, there was some suggestion at the hearing that there may be a coming change to her status. If and when that actually happens, the value of the settlement to the grievor and the labour relations rationale for insuring strict compliance with its terms may both be enhanced. [19] I have some small amount of hesitation in arriving at the conclusion that follows. The sanctity of settlements is “labour relations 101”. Settlements are an integral part of the foundation of labour relations practice. They are to be encouraged and respected. As a near universal proposition, arbitrators should maintain and enforce compliance with the terms of the parties’ settlements. [20] In my view, however, the circumstances of this case provide the basis for my reticence to strictly enforce the terms of the parties’ settlement. [21] With the benefit of almost 20 years of hindsight, it is difficult to discern the actual labour relations purpose of providing the grievor with weekly information regarding vacancies, let alone the need for such information to be delivered by courier. [22] Despite that puzzle, I am not now suggesting nor am I now being asked to conclude that the settlement be quashed; that the employer be released from its obligations; that those obligations be somehow modified; that the Board express some view as to whether electronic, rather than physical, delivery of documents - 6 - could constitute substantial compliance; or that no further complaints be considered until the grievor can establish that she is no longer totally disabled and is fit to return to work. [23] The fact is, however, that the employer has overwhelmingly complied with the terms of the settlement, with a compliance rate ranging approximately between 96.5 and 99.5 percent depending on the period of time surveyed. [24] To the extent that there have been exceptional instances of delivery issues, there have been two occasions where the Board has previously found (one on agreement of the parties) a violation of the terms of the parties’ settlement. To the extent the Board has previously encountered actual or possible breaches, terms like “technical” or “de minimus” have been used. Further, there has never been any relief provided beyond a declaration, because the grievor has been unable to establish any resulting harm. [25] The instant case continues the pattern. I have already indicated that I am avoiding a full descent into the merits of the claims. However, in my view, there is simply no nexus between the settlement and the complaints regarding tuition reimbursement and access to the online portal. The claims regarding poor print quality might, at the very best, rise to the level of de minimus. [26] That leaves the claims of non-delivery and late delivery. I have already noted that in one case of late delivery, the employer does not dispute the facts pleaded by the union. It thus appears that there may well have been an instance where the delivery may have been effected after the deadline for the corresponding job postings. In the other cases, there do seem to be contested issues of both fact and law that might have to be resolved. [27] However, at the end of the day, whether there is one or four instances of incomplete or inadequate delivery, all the other factors remain constant:  The employer has maintained a high rate of compliance with its obligations subject to some marginal exceptions related to the vicissitudes of courier delivery.  The grievor has consistently delayed reporting any issues until they are incapable of being cured.  The grievor is on long term disability is totally disabled and unable to work rendering questions of job applications somewhat academic. - 7 -  The grievor has never identified a job for which she would have applied.  The grievor has never established that any harm has been suffered because of any of the alleged violations. [28] In all these circumstances, I see no real labour relations purpose to be served by allowing the present matter to continue. The grievor’s claims are hereby dismissed. [29] In the event of any future similar complaints, the conditions set out in my previous decision will continue to apply. In addition, the union is directed, as part of its initial filings in any future complaint in this matter, to provide:  full particulars regarding the job(s) for which the grievor would have applied and her qualifications for same.  Full particulars of any harm alleged to have been suffered because of the alleged violations.  Submissions as to how the circumstances under consideration differ from previous complaints and to “show cause” why the Board ought to permit any such future complaint to proceed to hearing. [30] The grievor’s current allegations of breach of settlement are dismissed. Dated at Toronto, Ontario this 28th day of March 2022. “Bram Herlich” ___________________ Bram Herlich, Arbitrator