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HomeMy WebLinkAboutLocking 03-03-14 . ();J- - JleO () (p ( 10102... j; 'I' '" IN THE MATTER OF AN ARBITRATION I 5 )LMj ~,<:",Y ....~. --- -''''"' ; .-' 1 BETWEEN { "", /\."JL. ~i ,ifi" ;I~ , t \' ,""" (j' ."/ ~'{r Grey Bruce Health ServIces o \j Full Time and Part-Time Clerical (The "Employer") AND Ontano Public SefYlce Employees DillOn, Local 260 (The "Dillon") AND m the matter of the mdIvIdual gnevance of Ms. Millie Lockmg APPEARANCES. FOR THE EMPLOYER. R H. Hickman, counsel K. Bowers W Gerry, employee h.s. R Croft, Afmgr health records L. Cook, mgr , health records S Burley, dIr, employee h.s FOR THE UNION J BreWln, counsel M. Lockmg, gnevor J McIllwraIth, pres., Loc 260 R Rudo, steward, Loc 260 Hearmgs held m Owen Sound on December 16, 2002 and February 6, 7 and 21,2003 Ii . I (; 2 AWARD There are two grIevances before me m regard to Ms. MillIe LockIng (the "gnevor"), both dated October 18, 2002 The first gnevance states "The Employer has failed to accommodate me" and i requests, by way of remedy, "To provIde me With SUItable employment unmedIately, to compensate me for any or all lost wages, benefits and semonty and anythIng else the arbItrator deems appropnate." The second gnevance states, "The Employer IS vIOlatmg ArtIcle 3 of the OPSED clencal collective agreement and any other applIcable article" The remedy sought m the second gnevance IS Idenllcal to that m the first save for the followmg addItion. "To proVIde me With SUItable (within my restrictions) employment " (EmphasIs added.) The relevant proViSIOns of the collectIve agreement under WIch the gnevances anse are as follows 3.01 - No DIscnmmatIOn The partIes agree that there shall be no discnmmatIon WIthm the meamng of the Ontario Human Rights Code against any employee by the Dmon or the HOSpItal by reason of race, creed, colour, age, sex, mantal status, nationality, ancestry or place of ongm, family status, handicap, sexual onentatIOn, political affilIation or actIVity, or place of reSIdence. The HOSpItal and the Dmon further agree that there will be no IntImIdatIOn, discrimmallon, Interference, restramt or coerCIOn exercIsed or practIsed by eIther of them or theIr representallves or members, because of an employee's membersmp or non-memberslnp m a Dmon or because of Ins actIVity or lack of actIVIty In the Dmon. The Employer pOSItion IS that there has been no VIOlatIOn of the collectIve agreement. In addItIOn, at the commencement of the heanng the Employer raIsed two prelimInary obJectIOns. One IS that the gnevance IS not arbItrable on ItS ments for reason that there IS a settlement between the partIes that resolves the subject-matter of the grIevances. The second IS that the gnevances are premature because the gnevance and arbItratIon procedures m the collective agreement were not properly followed. Dunng the heanng, the partIes reached an agreement In regard to the latter and, In accord WIth that agreement, I remaIn seIZed of my JunsdICtIon should the matters compnsmg theIr agreement not be resolved by the partIes. As concerns the former, the partIes agreed that It be dealt WIth In SUbIllissIons follOWIng the presentatIon of eVIdence In regard, both, to the subject-matter of " 3 the gnevances and to the substance of the Employer's prelunmary ObjectIOn to be resolved In tlus award. The first ISsue to be detenmned In tlus award, therefore, IS whether or not the subject-matter of the gnevor's two October 18, 2002 gnevances has been settled by the partIes m such fasluon that the settlement properly precludes arbItral determmatlOn of the ments of the gnevances. If It IS found that the settlement does not preclude the ments of the gnevances bemg dealt WIth In tlus arbItratIOn, It must then be detenmned whether or not the Employer breached art. 3 01 of the collectIve agreement by failIng to accommodate the gnevor m her employment. If It IS found that the settlement does preclude determmatIOn of the gnevances on theIr ments, the gnevances will be dIsIDlssed. Relevant to the prehmmary objection at hand, the gnevor began workmg for the Employer m the posIllon of departmental secretary In 1986 When her pOSItion became redundant 10 1997, she was able to transfer to the pOSItIon of Jumor health clerk 10 the health records department, commencmg March 23, 1997 The February, 1999 "Job Fact Sheet" for that Jumor clerk pOSItion mdicates the follow1Og work actIVIties, along With the average annual percentage of time spent m therr performance ACllVIty A. FILING OF PATIENTS' RECORDS (30%) . fIles away records In Permanent and Incomplete by tnple tenmnal digit order (approx. daily average 280) ACtiVIty B PROCESSES RECORDS FOR CLIN1CS (45%) . SIgnS out records on computer to appropnate staff locatIOn . Pulls records for Out-patient Psycluatry and Mental Health ServIces (approx. 50 daily), Day Surgery, and other chmcs, phYSICIans' offices (approx. 35 daily) . Enters dates of appoIntments on InSIde folders for psycluatry appomtments . Ensures unfiled reports are added to the records . Returns locatIOn of charts on computer when charts come back to the department (approx. 50 daily) ACtIVIty C PERFORMS OTHER DUTIES AS REQUlRED (20%) . Answers telephone dunng lunches and breaks and when short staffed , . 4 . Retneves charts from both actIve and mactIve storage areas . Retneves mIcrofilmed records . Faxes reports . Pulls charts upon request, e g. for reVIews, correspondence, research meetmgs, . PhotocopIes reports as reqUlred . Penodically tIdies records on shelves, checks for Illisfiles . Files reports on charts as tIme allows ACtIVIty D QUALITY IMPROVEMENT AND SAFETY (5%) Safety. Performs all dutIes m accordance wIth Health Centre Safety pohcles and procedures QUalIty. PartIcIpates m the ~ IdentIficatIon of key departmental processes and outcomes ~ IdentrlicatIon of key mternal and/or external customers ~ IdentIficatIOn of key customer needs and expectatIons and level of satIsfactIon on an ongomg baSIS ~ IdentIficatIon and momtonng of quahty mdicators for key departmental processes ~ development and ImplementatIon of the departmental quality Improvement plan ~ mterdepartmental data collectIon and process Improvement lilltIatIves Makes declSlons based on vahd and rehable data Takes actIOn and lilltIatlve to make partnerslups and processes better IS able to IdentIfy and suggest new Ideas to get the job done While the Job Fact Sheet mchcates that the task of, "ActIVIty A. Filing Of PatIent's Records", occupIes 30% of the job of work of a jumor clerk, It IS not m dispute that tms essentIal duty actually occupIes 50% of the work actIVItIes, as 1S handwntten on that document below "(30%)" The gnevor testIfied her health was "fine" when she became a jumor clerk and she had no medical restnctlOns, or precautIOns, and no phYSlcalliIllitatIons on her ability to perform her tasks From October 1997 to February 14, 2000, the gnevor suffered a number of compensable mjunes ansmg out of the course of her employment as a JunIor clerk and Illissed work or was on mochfied hours of work as a result. Further, in Workplace Safety and Insurance Board ["WSIB"] "FunctIon AbilItIes Form for Timely Return To Work ["FAF" as referred to by the partIes] medical clauns reports, a number of restnctlOns were put m place for the gnevor In a January 5, 1998 WSIB/FAF claIms report the gnevor's areas of InJury are noted as "Neck/Shoulders/[R1ght] arm upper limb", and that the gnevor was not capable of "returnmg to work llnmediately WIthOUt restnctlOns." It was recommended that her hours of work be modified to half- 5 tJIDe until reassessment ill two weeks. The report also mdicates the gnevor's "CapabihtIes" are such that: "Walkmg: short dIstance only; Standmg: as tolerated, Sittmg: as tolerated, Lrftmg floor to waIst less than 10 Kg., LIftmg WaIst to shoulder less than 10 Kg., Starr chmbmg: as tolerated, Ladder chmbmg as tolerated, Lumt phYSICal exertIOn. as tolerated." The report mdIcates rehabihtatIOn/treatment IS requrred and that her complete recovery was expected. A March 13, 1998 WSIB/FAF report from her family phYSICIan, Dr Taylor, states as follows m regard to the gnevor's mJunes. "Area of InJUlY CervIcal/thoracIc spme, [nght] and [left] upper extreIDltIes." As to the gnevor's ability to return "to work unmedIately Without restnctIons", Dr Taylor notes "not offwork." Her comments on that report are as follows LIttle change smce startmg [treatment] Jan. 26/98 Has symptoms of repetitive stram syndrome - [Right] arm & hand symptoms have developed m the past week. If no Improvement by next week -. will have ergonoIDlc assessment done. May need to modIfy hrs If status detenorates. The report recommended that treatment of the gnevor's condItIOn was requrred and Dr Taylor put m place the following phYSICal hmitatIOns on, "Repetitive movement of: Shoulders beyond [neck] reachIng-zone laterally", "Above-shoulder actiVIty. recommend to shoulder heIght only", and "L1IDlt phYSICal exertIon to as tolerated." As concerns "Complete recovery expected", Dr Taylor checked off yes, With a question mark. In a July 2, 1998 WSIB/F AF mechcal report, Dr Taylor mdicates the gnevor's areas of mJury are, "N eck & upper back, arms", that treatment was requrred, that full recovery was expected and she recommended modified hours of work; "Suggest work 10 am to 2 pm [for] 2 weeks, then re-assess " Dr Taylor mchcated that the gnevor was not capable of returnmg to work unmediately Without restnctIOns but mdIcated that complete recovery was expected. In an October 21, 1998 WSIB/FAF medical report, Dr Taylor reported the area of the gnevor's mJury to be "[nght] thumb", that treatment was reqUired and that the gnevor was not capable of returnmg to work unmedIately Without restnctIons. The followmg capabihtIes are mdIcated "LlIDIted abihty to use hand to hold objects, gnp", and lumtatIOns of "RepetitIve movement of: 6 [RIght] arm & hand", "Above-shoulder activIty", and "Below-shoulder actiVIty" While Dr Taylor ! dId not mdIcate whether complete recovery was expected, modIfied hours of work was recommended. The gnevor worked on modified hours from roughly October 6, 1998 to January 24, 1999 The WSIB chums adjudIcator requested that the gnevor's modIfied Job be revIewed ''wIth respect to smtabilityand If return to full duties IS acceptable", as mdicated m the February 12, 1999 report of the Ergonoilllcs SpecIalIst, Mr Gary DOIg. Relevant for our purposes, the report states that the gnevor's wsm claim IS for, ''Neck, Bilateral Shoulders and bilateral elbows" The report mdicates the gnevor's current medIcal status mcludes: "MedIcal PrecautIOns. - AVOId overhead work, AVOId Prolonged or Repetitive Neck ExtensIOn." In regard to the "Background And DeSIgn" section of the report, Mr DOIg states. The worker IS presently performmg a modified verSIOn of the records clerk Job Charts must be pulled and dehvered to the appropnate place. The charts are then returned the next day and must be replaced onto shelves. The task of replacmg the charts onto the storage shelves IS not bemg performed by the mJured worker A portable ladder has been Introduced to reduce the overhead reaching onto shelves. Mr DOIg reached certam findIngs and conclusIOns and made a number of recommendatIOns regardIng the gnevor's work tasks FINDINGS. The Job mvolves a JDJXture of file retneval, computer work and dehvery General office dutIes are a part of tills Job The Job has been modrlied for the worker to elimmate the replacmg of files mto the shelves. Worker has access to a portable ladder/starrs. Files are located on shelves that must be moved on floor tracks. Files vary m weIght and tillckness. Shelves extend to well above the worker's heIght. CONCLUSION It IS the opmIOn of tills Ergonoilllcs SpecIalist that the Jumor Health Records Clerk Job IS SUItable for the worker WIth certam accommodatIons. The ratIOnale and accommodatIOns are outlmed m the DISCUSSIOn and RecommendatIons sectIOns, at the end of tills report. 7 RECOMMENDATIONS It IS the oplillon oftlns Ergonolllics SpecIalIst that the modified Job IS sUItable for the worker The filIng dutIes should not be re-mtroduced to the Job as thIs would mcrease the pushIng and above shoulder reachIng. Even WIth the portable starrcase some reaches are still above shoulder level. Certam accommodatIons should be made to ensure the Job remams SUItable. The accommodatIOns are outlmed In detail m the dIScussIon sectIon but are presented bnefly below 1 ) Contmue WIth the modrfied Job III ItS current format, WIthout the filing of charts The remammg eIght accommodatIons address the ergonolllics of certam tasks performance and availability of push carts and such for the gnevor One restnction, however, IS that the gnevor IS not to be assIgned chart retneval InvolVIng "the heavy 45 lb boxes." OnApri116, 1999 the gnevorunderwent surgery for carpal tunnel syndrome and was offwork until February 15,2000 When the gnevor returned to work on that day, she was on modIfied hours and, also, dId not contInue to perform the modIfied dutIes of a Jumor clerk. Instead, she was assIgned lIghter dutIes In the form of a subset of the modified Jumor clerk pOSItIon on a temporary baSIS, winch subset of dutIes Ms. Cook, the manager of the health records department from May to August, 2002, described as "bItS and pIeces" of the remamIng fifty percent of a JUlllor clerk pOSItIOn Le., the work remaImng after the filing work IS removed. The grIevor expenenced a "flare up" of her arms and shoulders condItIon on March 17, 2000 and was able to return to work on full-tIme hours on June 26, 2000 From August 8 to the end of November 2000, the gnevor was assIgned as a temporary SWItchboard operator On the first or second day of that aSSIgnment she expenenced a problem m or around her left elbow While able to contmueworkmg full-tIme hours when she returned to her February 15,2000 Job, she underwent surgIcal reparr of an ulnar nerve III her left elbow on March 21, 2001 and returned to work on June 15,2001, on modIfied hours untilJuly 3,2001 On February 7, 2002, the gnevor suffered a low-back mJury at work and return to work on March 5, 2002, on modIfied hours, until resummg full-tIme hours on July 26, 2002 8 Pnor to resummg full-tIme hours on July 26,2002, the gnevor receIved a July 12, 2002 letter from her wsm clauns adjudIcator which contams the follOWIng relevant to our purposes. A permanent impairment eXISts for the nght shoulder and you were granted an 8% i Non-Econoilllc Loss (NEL) award. Based on the appeals decIsIon of January 15, 2002 a form 43 was sent to you (May 9, 2002) to have your doctor complete In order to determme If you have a permanent ImpaIrment WIth your wnsts and left elbow ThIs form 43 still IS not on file as of today It IS antICIpated that you likely have permanent rmpaIrment for these areas. You are currently conSIdered partIally Imparred and capable of workIng WIthIn your permanent medIcal precautIons, whIch Include . no repetItIve nght should movements . no above shoulder and overhead actIVIty WIth the nght arm . no repetItIve use of the nght upper extrermty . right arm-hftmg limItatIOns . no repetItIve gnppIng WIth eIther hand . no repetItIve movement of the left elbow JOInt agaInSt reSIstance If appropnate medIcal precautIOns are adhered to, you are able to partICIpate In a gradual return to work to achIeve a return back SUItable and safe employment. If your employer IS unable to accommodate you In an early and safe return to work, your file may be referred for a labour market re-entry (LMR) assessment. If tlns occurs, an LMR Case Manager, who will be aSSIgned, will contact you to assist In IdentIfyIng alternatIve work outSIde of Grey Bruce Health ServIces. Further, In correspondence also dated July 12,2002, from the same wsm clauns adjudicator, Ms. Sue Burley, the Employer's dIrector of employee health servIces, was Informed as follows Attached please :find my letter to Ms. Mildred LockIng regardIng a return to work and outlinIng therr phYSICal precautIOns. Under sectIon 40 (1) of the Workplace Safety and Insurance Act employers are requrred to cooperate In the early and safe return to work of the worker by, (a) contactIng the worker as soon as possible after the Injury occurs and mamtaInIng commumcatIon throughout the penod of the worker's recovery and ImpaIrment; (b) attemptIng to prOVIde SUItable employment that IS available and conSIstent WIth the worker's functIOnal abilitIes and that, where possible, restores the worker's pre-Injury earmngs, (c) gIVIng the board such mformatIOn as the Board may request concermng the worker's return to work; and 9 (d) dOIng such other thIngs as may be prescribed. We hIghly encourage you to work wIth your employee towards a successful return to work. ThIs IS a beneficIal and cost effectIve outcome for both you and your employee. For further InfOrmatIOn about how thIs deCISIon may nnpact yours costs, please contact your Account Manager, Mrs. Donna Madore at (519) 575-1324) If you find that the planmng for a return to work IS not progressIng well, please contact me. We will proVIde medIatIOn servIces to you and the worker to aSSIst In resolvmg any dIsputes that may prevent an early and safe return to work. If you are unable to arrange a timely return to work to permanent appropnate employment at no wage loss, I may refer thIs worker to Labour Market Re-entry (LMR) ServIces I will Walt until July 29, 2002, I will then proceed WIth a referral to LMR If you have not confirmed a wntten return to work plan WIth me, whIch Includes a start date, earmngs, Job title and descnptIon of dutIes. While the WSIB had set a deadlIne of July 29, 2002 for purposes of detenrumng whether or not permanent appropnate employment could be arranged for the gnevor, In a July 23,2002 modrfied- work meetIng attended by the gnevor, two Dmon representatives (Ms.Mclliwralth and Ms. Rudo), Ms. Burley, Ms. Cook and Ms. Gerry, an employee health servIces officer, It was deCIded that an extensIOn be requested ill order for an ergonoilllst to assess the gnevor's duties agamst her medIcal precautIOns whIch had now become permanent. The Dmon apparently supported thIs request, but moreso from the pOSItIOn of contInumg the gnevor's employment. Ms. LIZ Cook sald the request for an ergonoilllcs assessment arose because her VIew, supported by Ms. Burley and Ms. Gerry, was that, grven the nature of the now-permanent medical precautIOns, the gnevor's dutIes exceeded those restnctIOns and was at nsk of further illJUry If she contInued to perform them. The August 13,2002 report of the same ergonoilllst who had assessed the gnevor's Job In February 1999, Mr.DOlg, states as follows relevant for our purposes PURPOSE. As requested by the Adjudicator, to reVIew preVIOUS Ergonoilllcs Report and comment on SUItabilIty of the Jumor Health Records Clerk, given the expanded entItlement whIch now illcludes bilateral WflStS, In addItIOn to elbows and shoulders. FINDINGS 10 Latest Job offer from the accIdent employer, Sue Burley of the Grey Bruce RegIOnal Health ServIces suggests the followmg Job duties - Look up charts on computer - Sort and File smgle reports. - Assemble charts for departments. - Answer the telephone. - Make labels for envelopes/charts. PrevIOUS ergonolllics report completed for tms worker mdIcated that It was tms Ergonoffilsts [ SIC] opinIon that the Job was suItable WIth a number of accommodations. Recommendations for that report are still pertment for the Bilateral Shoulders and need to be m place for the Job to be sUitable With the latest entItlement to Bilateral wnst and Left elbow the medical precautIOns now mclude. AVOId Repe1Jtive movements of the wnst and elbow agamst reSIstance; for example twlstmg, pushIng, pulling; AVOId repetItive gnppmg. These are m addItion to the prevIOUS medical precautions for the shoulders. CONCLUSION It IS the opmIOn of thIs Ergonolllist that the dutIes may exceed the worker's medIcal precautlons but a work tnallS warranted. AccommodatIOns as suggested m preVIOUS report and the few suggested m tms report need to be m place. Should the worker report ongomg or contmued problems With these demands It could then be deemed not suItable. Ms. Cook and Ms. Burley testIfied they Viewed the ergonolllist's conclUSIOns as bemg not as helpful as they expected but, In any event, decIded to contInue the gnevor In her dutIes, lilltIaIly aSSIgned m February 2000 on a temporary baSIS, on a tnal basIS as suggested by the ergonotnlst, albeIt they and Ms Gerry were still of the opImon that the duties exceeded the gnevor's medical, and now permanent, restnctIons. Further, Ms. Gerry had revIewed pOSItIOns that became available, but the work mvolved eIther exceeded the gnevor's restrIctlons or she was not qualIfied to perform It. Also, Ms. Gerry reViewed the gnevor's eVidence regardmg the duties she had been performmg at relevant tImes. Ms. Gerry's eVidence IS that from June 7,2000 to October 8,2002, the most frequent dutIes the gnevor performed were dIrectIng mail, start new files/assemble charts, and, sortIng of documents, wmch dutles are not m the Job descnptlons of a Jumor clerk or clerk In the health records department. Also, Ms. Gerry's eVidence IS that from May 14, 1998 to October 16, 2002 the gnevor, m effect, worked less than fifty percent of the tIme as a result of absence due to Injury or illness or modIfied hours of work. 11 Apparently, on Its own ImtIatlve the WSIB arranged for one of Its return-to-work mediators to convene a meetIng whIch occurred on October 3, 2002 attended by the gnevor, her two Umon representatives, Ms. Rudo and Ms MclllwraIth, Ms. Burley, Ms. Gerry, and Mr Bob Croft, the actIng manager of the health records department. (Ms. Cook left the Employer In August for a pOSItIOn elsewhere.) While the eVldence IS the Umon took the pOSItIOn at the start of the mediatIOn seSSIOn that the gnevor should continue In her employment, It IS not In dIspute that a resolutIon was reached, the terms of whIch are stated In the mediator's October 4, 2002 letter to Ms Burley' RESOLUTION TERMS OF AGREEMENT: ArISIng out of our mediatIon sessIOn, the work place partIes agreed to as follows 1) Milhe's present sUItable pOSItion will be concluded as of Fnday Oct. 18/02, subject to change according to her Labour Market Re-Entry partIcIpatIOn needs. 2A) GIven that MedIcal Secretary and or VariatIOns of same, IS perceIved to be the most suItable and Viable foundation pOSItIOn, In that It IS expected to be available In several other Grey Bruce Health ServIces Departments, It IS therefore recommended that thIs pOSItion be gIven specIal consIderatIOn In forthcommg Labour Market Re- Entry retrammg. B) That the Grey Bruce Health ServIces work place partIes concerned be appnsed of the general aptitude and mterest testIng results as to aSSIst In retrauung dIrectIOn Input towards potentIal re-employment WIthIn. C) That Labour Market Re-Entry retrammg work practIcums where apphcable are done at Grey Bruce Health ServIces based on SItuatIOnal practIcahty 3) Upon Millie's Labour Market Re-Entry retrammg program successful completIOn In a Medical Secretary capacIty or closely aligned field, Grey Bruce Health ServIces will offer Millie the next available and SUItable pOSItIOn, WithIn that field whIch leads towards a full time Job Mr Croft saId, m reVleWIng the gnevor's file With Ms. Cook pnor to her departure, hIs understanding was that the gnevor's Job, as of August 2002, was not a regular one m the health records department, but was "A temporary, modtfied Job and the work plan was to Increase her Job duties." As to the October 3,2002 mediatIon sessIOn, Mr Croft SaId, "We spent the day hashIng through employee and management pOInts - what we'd need to see, the lffiportance of the pOInts and the LMR program and came up WIth an agreement", as stated m the WSIB October 4, 2002 letter and whIch terms, he SaId, set out the terms reached by the Employer, the Umon and the gnevor In the October 3rd meetIng. He SaId It was not agreed to contmue the gnevor's Job because, "The [gnevor' s] restnctIOns had become permanent In nature To me, WIth the work plan Ms Cook had started, there was no way to get her back to her permanent Job We needed to find her SUItable i I ; , 12 ! employment. " October 18, 2002 was decided-upon as the date to conclude the gnevor's Job, i \ "because the UvfR trauung would start around that time." In cross-exammatIon, Mr Croft sald that pnor to the October 3rd sessiOn, "The only tIung we'd concluded was we needed a permanent solutiOn for [the gnevor]" He agreed the Dmon m that meetmg had objected to concluding the gnevor's Job and had wanted it to contmue. When asked If the Employer had wanted to conclude it, he sald, "That was part of the process, we each gave our opmiOn." He agreed the Employer, "ultImately" decIdes whether the Job would be concluded or contmued but added, "There are a lot offactors that go mto that declSlon." He sald the gnevor's Job "was not something we could contmue permanently" He sald is was "impossible" to re-assign clencal work m the department m order to allow the gnevor to contmue m her pOSition, "Health records IS all about files, everyone has to handle files" and, "at some stage everyone has to [get files :from the permanent records stacks] " Ms. Gerry sald that m the October 3,2002, wsm mediatiOn seSSiOn, "Both SIdes presented to the other SIde our baSIC pOSItIon. There were diSCUSSiOns. The rmddle ground [decIded on] was [the gnevor] would go through the LMR and, rrtramed, get placement m the hOSpItal. At the end of the day, I was under the ImpreSSiOn that was the resolutiOn we'd reached." She agreed the mediator's l~tter of October 4,2002 accurately sets out the agreement. She sald that on October 3,2002, the mediator, "Wrote out line by lme what's mcluded [in the letter] At the end of the line, he asked rr everyone m the room agreed and didn't contmue until everyone had acknowledged [what was wntten] " In cross-exammatiOn, Ms. Gerry agreed the Employer went mto the mediatiOn seSSiOn WIth the pOSitIon the gnevor would go mto the LMR and her pOSitiOn would be concluded, "because the two are mutually exclusIVe." She was aware that the Dmon pOSitIon at the mediatiOn seSSiOn was for the gnevor's Job to contInue and the Employer's response was, "We'd provIde re-employment at the end of [her] LMR or an opportunIty [for re-employment]" The Employer dId not agree to contmue her pOSitIon because, ''We thought further employment [in it] would be a health nsk, so we were lookmg for employment that was not a health nsk." She sald the LMR was consIdered by the Employer as an alternative to contInumg the gnevor m her pOSItion. She sald "It wouldn't have been out of place" 13 for the Dillon or gnevor to have raIsed concerns m the mediatIOn seSSIOn about what would happen to the gnevor's benefits If she refused to go mto the LMR program, but could not remember specIfically If that concern had been raIsed WIth the Employer m the seSSIOn. She agreed there IS no wntten memorandum of settlement sIgned by the partIes and the gnevor, and that the October 4, 2002 letter from the wsm mediator IS the only wntten record of the conclUSIOn reached m the mechatlon seSSIOn. She understands the Dillon and the gnevor do not accept the statements m that letter as to therr accuracy While she could not recall If It was on October 9, 2002, she agreed that Mr Croft did Inform her the gnevor's pOSItIOn, post-October 3rd, was that her Job not be concluded on October 18,2002. Ms. Gerry saId It "sounds familiar", that Mr Croft had adVIsed her the Dillon and gnevor had mdicated to hIm that If the Employer concluded the grIevor's pOSItIon on October 18,2002, the Dillon would gneve that declSlon. She agreed that between October 9 and 18, 2002 the Employer could have changed ItS rmnd and decIde not to conclude the gnevor's pOSItIon but saId, "The Employer was still of the mmd that the pOSItIon was unsafe." ~ Ms Burley saId the agreement reached on October 3, 2002 IS as specIfied m the wsm letter of October 4, 2002 She saId each of those pomts was discussed at the meetmg and each had been wntten on flip charts by the mediator She saId, "The directIOn came from the wsm to look at the LMR program If there was not suItable work for [the gnevor]" It was her testImony that the wsm decIdes whether a person enters the L:t\.1R program and she had been Informed the gnevor entered that program subsequent to October 18, 2002 In cross-exanunatIOn she agreed that the Employer pOSItiOn m the October 3rd seSSIOn was that the grIevor's Job was not appropnate, permanent work for her The Employer argued that on October 3, 2002 ItS representatIves, the DillOn, and the gnevor all agreed that the gnevor's Job would conclude and not contmue after October 18, 2002 The Dillon dId not call as WItnesses Ms Rudo and Ms. MclllwraIth who attended the October 3rd seSSIOn (and at tills arbItratIOn heanng) to say there was no such agreement, nor would the Dillon allow for the wsm medIator to be called as a WItness Both these CIrcumstances, It was argued, properly allow for an mference adverse to the Dillon pOSItIon, such that It must be found that tlus agreement was reached on October 3, 2002. The Employer sublllitted that there IS no suggestIon the necessary 14 elements of an agreement are lackmg concermng the medIated settlement: The Dmon and Employer partIcIpants had the apparent authonty and capacIty to reach an agreement; the gnevor receIved conslderatlOn m respect to the dis-contmuatlOn of her job, and, there was no issue raIsed by the Dmon that the terms of the settlement are not clear, all of wmch are the elements of a bmding agreement. Moreover, neIther the gnevor nor the Dmon ever sent anythIng m wntmg to the wsm dlSputIllg the terms of the agreement. Further, gIVen that the grievor has taken full advantage of the agreement III that she IS currently m the LMR process and recelvmg benefits, it cannot be SaId there has been no performance of the agreement. The Dmon pOSItion, that It and the gnevor had no chOIce but to enter mto the October 3,2002 agreement, IS not supported by the eVIdence before me nor IS there eVIdence before me to establish that there was no agreement. The Dmon pOSItion appears to be that If there was an agreement reached on October 3, 2002, It backed out of It when ItS representatIVes approached Mr Croft sometIme between October 3 and 18, 2002 and commumcated to hnn that It would be filing a gnevance objectmg to the discontmuance of the gnevor's job effectIve October 18, 2002 It was argued, however, that the Dmon m the InStant case cannot properly renege on its agreement and wmch agreement resolves the same Issue complamed of m the October 18, 2002 gnevances. In that respect, there IS no eVidence of Illistake, Illis-representatIon, fraud, undue mfluence, unconsclOnability or duress associated With the October 3, 2002 agreement. There IS no eVidence to suggest or estabhsh that IT the gnevor did not agree to the terms of that agreement her benefits would be cut off, and there IS no eVIdence the Dmon or gnevor was told tills would occur m the meeting of October 3,2002 The Employer subIllitted that while the Dmon may have expressed ItS opposltlon to the terms of the settlement at some tIme m the meetmg, the pomt IS the matter ended up bemg settled at the end of the day It was subIllitted that numerous arb1tratlOn awards mdicate It IS tmportant for DmonJEmployer relatlOllS that a settlement IS a settlement, and the reasonmg that apphes m those mstances where the partIes reach a settlement of a gnevance apphes here, namely, that the Dmon cannot renege on an agreement It made m the CIrcumstance of a settlement of a complamt. To allow the Dmon to do so m the InStant case would destroy the whole process of the partIes trymg to settle theIr dIsputes on theIr own. Further, the absence of SIgnatures to the agreement by the partIes does not make the settlement any less bmdmg Re Marnwood Lifecare Centre and C. u.P.E., Loc. 2225 (1997), 62 L.AC (4th) 1 (Bnggs), Re Fabrene Inc. and Northern Independent Union [1998] 15 o L A.A No 635 (Dlssanayake) Yet, m the mstant case, It would seem that not only does the gnevor want to take all the advantages of the agreement but, as well, seeks to be entItled to further accommodatIOn and, thus, seeks not to be reqUired to hve up to her part of the agreement. Also, the Employer argued that the above facts and arguments support a conclUSIOn that the Dmon IS estopped m tlus matter The Dmon and the gnevor made representatIOns to the Employer on October 3,2002 that they agreed her Job would be dIscontmued effectIve October 18, 2002. Those representatIOns were mtended to be relied upon by the Employer and the Employer did rely upon those representatIOns. In relymg upon them, the Employer has done so to ItS detnment, m that the terms of the October 3, 2002 settlement go beyond the obligatIOns wluch the Employer has under the provIsIOns of the Workplace Safety and Insurance Act. The Umonargued the facts relevant to the October 3,2002 agreement are that the wsm mediator convened the meetmg under the unpresslOn that there was no accommodated permanent posItIon for the gnevor and put to the partIes the View that an LMR process should be tned for the gnevor The Dmon sought the Employer's agreement to contmue the dutIes assigned to the gnevor but the Employer deCided not to do that. Since the gnevor could not contmue With the dutIes and no other positIOn was offered to her, she was left only With the chOIce of acceding to the suggestIOn of entenng the LMR program, and the only deCISIOn to be made was when she would start the LMR. In tlus factual Circumstance, It was argued, there was no meetmg of the mmds on the Issue of whether or not the gnevor's Job would be concluded. In that respect, the Dmon did approach Mr Croft some tIme between October 3 and 181h and, agam, asked the Employer not to proceed With the dlscontmuatlOn of the gnevor's pOSition and mformed lum that a gnevance would be filed If the posItIon was dis-contmued, wluch IS exactly what happened on October 18, 2002. Thus, absent a meetmg of the parties' mmds on the matter of the dis-contmuatlOn of the gnevor's Job, the October 3, 2002 settlement IS not proper Alternanvely, should It be found that the Dmon and the gnevor agreed the gnevor's positIOn should be concluded, the settlement of October 3, 2002 IS not a bmding contract. The Dmon subrmtted, firstly, that It cannot be a bmdmg contract because the terms of the settlement unproperly bargamed ! 16 away the gnevor's nght to be accommodated as a disabled person under art. 3 01 of the collective agreement and under the proVISIons of the Ontano Human Rights Code. Secondly, there was no conSIderatIOn as a result of the terms of the settlement, m that nothmg m them bmds or Imposes on the Employer a reqUirement to do anythmg. The only term that appears to Impose an obhgatIOn on the Employer IS paragraph 3 of the October 4,2002 WSIB medIator's letter, but whIch obligatIOn - that It "will offer [the gnevor] the next available and SUItable posltlon whIch leads to a full- ! tIme Job" - IS nothIng more than what the Employer IS already obliged to do, 1.e., accommodate I the gnevorto the pomt of undue hardsInp Tlnrdly, the Employer thought on October 3,2002, there was no alternatlve to the LMR program for the gnevor because It could not accommodate her m a permanent posltlon, yet tIns IS a clfcular argument tantamount to the Employer saYIng that to ! contmue to accommodate the gnevor IS an undue hardsInp on It. In these clfcumstances, the Dmon argued, the October 3, 2002 memorandum of understanding IS not properly bmdmg, or enforceable as a contract, nor IS It a settlement of a gnevance Rather, accommodatIOn is a human nght pursuant to art. 3 01 and the Human Rights Code and, as such, a contmumg obligatlon on the Employer The Dmon further subrmtted that the October 3, 2002 agreement IS neIther a bmding contract nor a wntten settlement of a grIevance but is, at best, an agreed-upon arrangement that does not constitute an enforceable agreement and It falls short of bmdmg the parties as part of the admtnlstratlon of the collective agreement. Also, the Dmon argued that an estoppel IS not available to the Employer m the mstant case. It was subrmtted the Employer has not rehed on anythIng to ItS detnment, m that the comtnltments it has made to the gnevor followmg the completIOn of her LMR program do not entail some cost ill actmg on the prollliSe made by the Employer Moreover, there IS no eVIdence of any cost to the Employer if It had cancelled the October 3rd arrangement pnor to October 18, 2002 In support of ItS pOSItion the Dillon subrmtted S Wilhston, A Treatise on the Law of Contracts Vol. 3, 41h ed. byR A Lord (Harvard D Lawyers CooperatlvePublishmg, 1992), c 7, para. 74, ibid Vol. 1 (1990), c.3, paras. 3.3,3 4,Re Sobeysand UFC.W, Loc. 175 (Cooper) (2002),105 L.AC (41h) 346 (Bendel) and Re Ontario Racing Commission and Assn. of Management, Administrative and Professional Crown Employees of Ontario (2001), 104 L.AC (41h) 166 (Knopf) I I 17 In reply, the Employer subIDltted there IS nothmg In the October 3, 2002 terms of settlement wluch states the agreement bargamedaway the gnevor's nght to be accommodated under the provIsIons of the Human Rights Code or of the collective agreement; m fact, the settlement does the OppOSIte. Further, the consIderatIOns contamed m the settlement mclude the gnevor recelvmg trammg as a medical secretary, and the Employer gIvmg up whatever obligatIOns to other employees If a pOSItIOn sUItable for the gnevor becomes available once It has agreed the pOSItion will go to her Further, the October 3, 2002 agreement has been nnplemented, the gnevor has accepted the LMR trammg wluch IS part of her accommodatIOn and, thus, the Employer has a nght to IDSISt on the agreement. Moreover, there IS no requrrement pursuant to s.48 (15) of the Labour Relations Act that all wntten agreements must be SIgned. Also, while the October 3rd agreement IS not a product of the gnevance procedures contamed ill the collectIve agreement, that clfcumstance does not negate ItS enforceabihty There IS no proper reqUIrement that all disputes between the partIes must be subject to gnevance procedures and must be m wntmg, and, that a umon can allege that the Human Rights Code VOIds an agreement reached any way The Employer subIDltted the Umon does not have the nght to Withdraw from the October 3, 2002 agreement and, If It could, It cannot also take the benefits from that agreement. That agreement describes and addresses how the accommodatIOn for the gnevor will be made until the LMR program IS completed or fimshed, and the duty on the Employer to accommodate the grlevor IS still m place pursuant to the October 3rd agreement. As to whether or not there eXIsts an agreement between the partIes wluch precludes the ments of the gnevance bemg dealt WIth m tills award, It IS uncontradicted that on October 3, 2002 Employer representatIves, Dillon representatIves and the gnevor all agreed to the terms of the agreement IdentIfied m the WSIB letter of October 4,2002. One of those terms IS that, "[The gnevor's] present SUItable pOSItIon will be concluded as of Fnday Oct. 18/02, subject to change accordmg to her Labour Market Re-Entry partICIpatIOn needs." The undisputed eVIdence IS that the gnevor has commenced her LMR program. The October 18, 2002 gnevances claml the Employer has VIOlated art. 3 01 of the collective agreement by way of a failure to accommodate the gnevor m her employment, and the remedy requested mcludes, "To provide [the grIevor] WIth SUItable (WithIn my restrIctIOns) employment unmedIately " As can be seen by way of companson of the above October 3,2002 terms of agreement With the subject-matter of the October 18, 2002 gnevances and the remedy requested, the complamt raIsed m the gnevances appears to have been resolved by the 18 earlier agreement between the Employer, the Umon and the gnevor Thus, the requested gnevance remedy of "sUltable (With my restnctlOns) employment", would requlfe a findmg that the October 3, 2002 term of agreement m quesTIon has no effect for purposes of dealing wIth the ments of the gnevances m tlus award. In Marnwood Lifecare Centre supra, on the first day of heanng, the partIes m mediatlOn resolved certam Issues ansmg from five grIevances, one of winch was that the employees m questlOn were agreed to as lymg WIthIn the scope of the bargammg urnt. No document of this agreement was I I drafted by the partIes so as to reduce therr agreement to wntIng (and, hence, no document was sIgned by the partIes) On the second day ofheanng, a new counsel for the Employer, who had prevlOusly notrfied the umon of the mtentlOn to do so, asked the arbItrator to "reVIve its pOSITIOn", ongmally taken at the commencement of the first day of heanng that the above referred-to employees were not Wltlnn the scope of the bargammg urnt. Relevant for our purposes, arbItrator Bnggs ruled that the employer was not pernntted to reVive ItS pOSITIOn m statmg, at pp 6 and 7 I have no heSItaTIOn m finding that I cannot allow the Employer to resile from ItS agreement. To do so would cause considerable harm not only to these partIes but, potenTIally, to labour relatlOns generally If I found for the Employer on this matter, the wrong message would be sent to the partIes. In the future, these partIes would be very reluctant to enter mto any settlement discusslOns If agreements made m apparent good faIth could be rescmded for whatever reason at some future TIme. The Employer lllight say that tins IS easily remedied by all agreements bemg reduced to wntmg. Tins lllight be the way of a perfect world. However, while agreements between partIes are often reduced to wntmg, I am not conVInced that It IS unusual that agreements that merely deal WIth part of the Issues m dispute are verbally contracted. ThIs IS not a case where there was a partIal agreement on a few facts that touch upon the matters m dispute There were five gnevances put before me One was an allegatIon that certam employees were WIthIn the scope of the bargmmng urnt. That Issue was addressed by the partIes m medIation and there was agreement that the employees were members of the bargmnmg urnt. Tins was not a partIal agreement. Tins was not eqUlvocal. It was a resolutIOn of that matter From the above, It can be seen that where the partIes reach an agreement that IS not m wntmg and not SIgned by them, neIther of those Clfcumstances makes theIr agreement any less bmding where 19 theIr agreement specIfically deals wIth a dispute between them. Thus, It IS Improper for one of the partles to -change ItS mmd and then seek to have that dispute subsequently dealt With m arbItratIOn. In Re Sobeys supra, the October 18, 2001 gnevance complaImng of "unjust termmatIOn - failure to pay notIce/severance termmatIOn pay", was resolved by November 29, 2001 Minutes of Settlement agreed to by the partIes. After the employer Issued a check to the gnevor (which was not cashed or depOSIted), the umon filed a December 14, 2001 gnevance allegmg "unjust termmatIOn based on disabilIty" pursuant to the Ontano Human Rights Code Relevant for our purposes, arbItrator Bendel, m disIDlssmg the December 14,2001 gnevance, states at p 349 I cannot accept [the Dmon] suggestion that I possess some dIscretIon to Ignore a settlement on the ground that It has not been rmplemented. If the settlement IS valid, It constItutes an agreement, to which I cannot refuse to gIve effect. In additIOn, despIte the differences m draftmg of the first and second gnevances, they both deal With the same matter, with the result that the settlement, rfvalid, acts as a bar to the launchIng of the second gnevance Relevant for our purposes, It can be seen from the Sobeys case that where the partIes have preVIously resolved the subject-matter of the gnevance, that settlement when found to be vahd, precludes the resurrectIon of that same subject-matter to be detefIDlned on ItS ments at arbItratIon. In the mstant case, the October 18, 2002 gnevances seek for the gnevor's employment to contmue, yet the October 3, 2002 terms of resolutIon clearly state the gnevor's Job IS to be concluded effectIve October 18, 2002 (The proVISO does not apply, gIven that the gnevor had been accepted mto, and had commenced her partICIpatIOn m the LMR program specIfied m the October 3, 2002 terms of resolutIOn) In Re Ontario Racing Commission supra, the partIes resolved a gnevance on September 10, 2001 Nearly rmmediately followmg those diSCUSSIOns, the umon sought for two "clanficatIons" to be illcluded ill the Memorandum of Settlement, although the document had been SIgned pnor to the proposals and dISCUSSIons of the clanficatIOns. In the mtenm, umon counsel had assured employer counsel that the umon would abIde by the prOVISIons of the Memorandum of Settlement ongmally agreed to However, the employer took the pOSItIon that because the umon contmued With proposals, It was not then bound by the Memorandum of Settlement. ArbItrator Knopf found that a settlement ! 20 I ; i had been aclueved on September 10, 2001 Relevant for our purposes, arbItrator Knopf CItes at I p 183, wIth approval, the follOWIng In Re B C. Ferry Corp and B C. Ferry & Marine Workers Union, [1980] 1 C.L.R.B.R. 409 (Munroe), pp 417-18 First of al~ where a settlement has clearly been reached over an arbItratIon dispute, that IS the end of the matter; neIther party may back away from It at a later date. Secondly, so long as the agreement IS reached by persons With actual or apparent authonty, all levels both of the employer and the trade-umon are bound. Tlurdly, It IS unmatenal that the settlement might not have been entered Into If one of the partIes was possessed of more mformatIon at the tune the settlement was reached. Finally, to be bmding the settlement need not have been arrIved at dunng a formal gnevance meetmg - I.e., arbItrable matters can be resolved WIth equal finalIty m a more mformal settIng. It can be seen from the Ontario Racing Commission award that, because the resolutIon of an arbItral dIspute (also Re Fabrene Inc. infra) occurs outSIde the formal dispute resolution procedures m a collectIve agreement I.e., "a more mformal settmg", the resolution has no less bmdmg effect on the partIes than If It were a resolutIOn of a gnevance by way of utilizatIOn of the formal processes or procedures m a collectIve agreement for resolVIng a formal gnevance. That IS, It IS the fact of a settlement of a dispute between them by the partIes rather than the processes used. by them to resolve theIr dispute that IS determmatIve of settlement. Thus, In the Instant case, the fact that the terms of resolution, mcluding the agreement to conclude the gnevor's Job effectIve October 18, 2002, were reached m a wsm mediatIOn seSSIOn m no way lessens the bmdIng nature of the parties agreement. Further, the October 3, 2002 agreement was reached by Employer and Dillon representatives (and the gnevor) who did have the actual or apparent authonty to bmd theIr respective partIes. Moreover, there IS no eVIdence before me that the partIes lacked necessary informatIOn m arrIVIng at the resolutIon In question. In Re Fabrene Inc. supra, In 1994 the gnevor was Injured In a compensable aCCIdent at work and, due to that InJury, was placed m a one-grade lower Job class The gnevor objected to beIng paid the lower rate of wage after sIXty days or to bemg red-CIrcled until the lower class wage-rate caught up to lus ongmal class wage-rate No gnevance was filed by the gnevor or lus umon. In April 1995, It was agreed that the gnevor would contmue bemg paid the lugher class Job wage-rate as long as he contInued to do the duties he was asSIgned In the lower class pOSItIOn, as was agreed between the 21 gnevor, ills foreman and the plant manager That agreement was reduced to wntIng, approved and confirmed by the Uillon steward, but was not SIgned by the employer, gnevor or Uillon steward. In June 1995, the plant manager deCIded to hold off SIgmng of the agreement when the hoped-for tOppIng off of the gnevor's wages by the Workplace Safety and Insurance Board did not occur, and because the employer was concerned about settIng a precedent by way of the agreement. Nonetheless, the gnevor was paid the Ingher wage-rate until February 1997, when the employer unilaterally reduced the gnevor's wage-rate to the lower claSSIfication. (The pOSItion he was In was elImmated from Ins slnft but not from the other three slnfts.) The gnevor responded by filmg a gnevance. The umon argued that while no gnevance had first been filed, there had nonetheless been a dIspute m 1995 that had been resolved and, therefore, at para. 13, " the employer was not entItled to resile from the settlement of gnevance by subsequently reducmg the gnevor's wage rate unilaterally " In regard to the employer's pOSItIOn, that the ongmal agreement was not the settlement of a gnevance because no gnevance had crystallized until the rate of pay was reduced, the maJonty states at para. 20 the current law IS that when the employer announces a polIcy or deCISIon to be Implemented, the Uillon or the affected employees do not have to Wait until the rule or deCISIon IS Imposed and losses suffered before gneVIng In the present case there IS no questIOn that a dispute had ansen between the grIevor and the employer as to whether hIs wage rate should be reduced The gnevor did not have to Wait until the rate was actually reduced and damages suffered, before obJecting to the deCISIon made by the employer If the dIspute that arose otherWIse constituted "a gnevance" under the terms of the collective agreement, It was not premature Once the dIspute arose, the Issue IS JOIned and crystallIzed. Further, as to the CIrcumstances of the terms of the resolutIOn of the gnevor's obJectIOn and the resolutIon not havmg been SIgned but reduced to wntmg, the maJonty states, at paras. 31 and 34, as follows In the present case there IS no doubt that the dIspute relatmg to the gnevor's claSSIficatIOn and wage rate was resolved. Nor IS there any dispute as to what the terms of that resolution were. Indeed those terms were reduced mto wntmg although not SIgned by the partIes. In these CIrcumstances, despIte the absence of a SIgned document, the settlement IS bmding on the partIes. 22 It IS common ground that the document accurately sets out the terms of settlement. It was prepared by the employer and was confirmed by a Uillon steward. SectIon 48 (15) [ofthe Labour Relations Act] does not reqmre SIgmng or sIgnatures. In our VIew, the concern addressed by the requIrement of a wntten settlement as a condItIOn of enforceabilIty IS the need for clanty of the terms of settlement. In that case, the maJonty found that the partIes were bound by theIr agreement and, accordingly, the gnevance was upheld. Relevant for our purposes, It can be seen from the Fabrene Inc. case that where the subJect-matter of a dispute can properly be charactenzed as an ISsue arIsmg under the proVIsIons of the collective agreement and the partIes agree to terms and condItIons that resolve the Issue, they are bound by those terms. Further, the dIspute need not be In the form of a gnevance, but must be clear as to ItS partIcular subJect-matter Nor must the terms of resolutIon necessarily be reduced to wntIng nor be sIgned by the partIes, as long as those terms are clear for purposes of enforceability In the InStant case, It IS clear that m entenng the mernatIOn seSSIOn on October 3, 2002, the dispute between the Employer and the Dillon was the Dillon pOSItIOn that the Employer continue to employ the gnevor, and, the Employer pOSItion that her Job would not contmue and that It could properly conclude, I.e., subJect-matter of the prOVISIons of the collectIve agreement whIch govern employment. While the partIes did not SIgn a document that sets out the terms of the resolutIOn of theIr dispute, those terms are set out In the wsm October 4, 2002 letter to the Employer, and, It IS uncontradicted eVIdence that those terms were agreed to by the Employer, the Dmon and the gnevor on October 3, 2002 Nor IS there any allegatIon that the terms of the October 3, 2002 resolution are m some way unclear The above exammatIOn of the submItted awards leads me to find m the mstant case that the Dillon IS precluded from havmg the subJect-matter of the October 18, 2002 gnevances before me dealt With on ItS ments. The subject-matter of the gnevances, that the gnevor's employment contmue With the Employer, IS the same subject-matter dealt WIth ill the October 3, 2002 wsm medIatIOn seSSIOn. While no gnevance had been filed pnor to October 18, 2002, the nature of the partIes' dispute was clearly known by them at the commencement of the October 3, 2002 mediation seSSIOn. Both Employer and Dillon representatIves WIth actual or apparent authonty to resolve theIr dispute partICIpated m that seSSIOn, and dId agree to conclude the gnevor's Job effectIve October 18, 2002 I i I 23 which dId, m fact, occur In a proper faslnon pursuant to the terms of resolutIOn as Identified In the WSIB October 4, 2002 letter to Ms. Burley Those terms are not In dIspute for want of accuracy That the terms of resolutIOn are not SIgned by the Employer and the Dillon and that the resolutIOn was achIeved through a wsm mediatIon process as opposed to the formal gnevance procedures prOVIded for In the partIes' collectIve agreement, does not make the partIes' agreement any less bmding. Because the Dillon SImply changed ItS mmd or had second thoughts after October 3, 2002, and Informed the Employer that It would file a gnevance If the gnevor's Job was concluded effective October 18, 2002 does not prOVIde reason to gIve no effect to the October 3, 2002 terms of resolutIOn. As to whether or not the October 3, 2002 terms of resolutIOn VIOlate the gnevor's nght under the Human Rights Code and pursuant to art. 3 01 of the collectIve agreement, In Re Sobeys supra, the umon argued, inter alia, that the settlement of the gnevance VIOlated the gnevor's nghts under the Human Rights Code on the grounds that the terms of the settlement were InCOnSIstent With his nght under the Code In that case, due to a condItIOn winch had been deemed by the wsm to be permanent, the gnevor was unable to resume hIs pre-accIdent duties and hIs employment was termInated for reason that no Job was available that met Ins capabilities. ArbItrator Bendel noted that arbItrators have the authonty, at p.349, to apply "human nghts and other employment-related statutes", and ill some cases "have refused to gIve effect to settlements on the ground that they were ill conflict With the Code." The settlement ill the Sobeys case was as follows The Company agrees to pay the gnevor two (2) weeks termmatIOn pay on a WIthout preJudIce baSIS subJect to the gnevance beillg WIthdrawn. Relevant for our purposes, arbItrator Bendel addresses the relatIOn between the Code and the terms of a grIevance settlement, as follows, at p 350 However, It IS Important to note that there IS notlnng on the face of the Minutes of Settlement to suggest any confhct WIth the Code. ArbItrators only rely on external statute where the collectIve agreement or settlement makes exphcIt prOVISIOn for sometlnng that IS InCOnSIstent With the statute 24 In the InStant case, there IS nothIng on the face of the October 3, 2002 terms of resolutIOn winch can be SaId to be a VIOlatIon of the gnevor's nghts under the Code and art. 3 01 of the collectIve agreement. Indeed, paragraphs 2A) and 3) of the resolutIon mdIcate, m clear faslnon, that OppOrtuillty for employment In a SUItable posItIon With the Employer will be made available to the gnevor upon her successful completIon of the LMR program. Therefore, I do not find that the October 3, 2002 terms of resolutIon VIolate the gnevor's nghts under the Code or pursuant to art. 3 01 of the collectIve agreement. Finally, the Dillon submItted that, to the extent the October 3,2002 agreement can be conSIdered to be a contract, It IS not a bmding one and, therefore, of no effect. In Re Ontario Racing Commission supra, applicatIOn of the common law of contract m the context of labour relatIons and collectIve agreements between employers and Uillons, matters of mutual mistake, repurnatIOn, and, fundamental breach that are assocIated With the law of contract, are addressed at pp 182-3, cItmg p 73 of Re Essex (County) and Essex County Municipal Employees, C. u.P.E., Loc. 29741 (Stephenson) (1998), 75 L.AC (4th) 58 (Williamson) as follows ArbItrator WIlliamson then went on to conSider whether the common law doctrme of repudiatIon and fundamental breach applies m a collectIve agreement world. He wntes [at p 73] ObservatIOns on the applicability of the common law doctnne of repudiatIOn and fundamental breach ill a collectIve agreement enVIronment were made by Clnef Justice Laskm m delivenng the maJority decIsIon ill McGavin Toastmaster Ltd v Ainscough (1975),54 D.L.R. (3d) 1, [1976] 1 S C.R. 718, [1975] 5 WW.R. 444, 4 N.R. 618 At page 123 mRe Hamilton Medical Laboratories [(1983), 10 L.AC (3d 106], ArbItrator Spnngate made reference to these observatIons of Clnef Justice Laskm In the follOWing way. "ChIef Justice Laskm stated that the common law as It applies to mdIvIdual employment contracts IS no longer relevant to employer- employee relatIOns governed by a collectIve agreement, and in the following terms indicated that the common law doctrines of repudiation and fundamental breach are not applicable to a collective agreement [p 7] , ~ 25 (EmphasIs In ongInal.) The above statements appear to IndIcate that the common law of contract may not be applIcable to a collectIve agreement. A settlement, It would seem then, arrIved at by employers and umons In the context of collective agreement admImstratIOn ought properly be approached m the same way as are the terms and condItions contaIned m a collectIve agreement, and not approached as a contract for purposes of applIcatIOn of the common law of contract. However, assumIng in arguendo that there may be arbItral abilIty to apply pnncIples of the law of contract In the mstant case, I do not find that the agreement of October 3, 2002 IS not bIndIng on the partIes~ The Dmon argued that the October 3,2002 agreement IS not a bIndIng contract for reason that there was no meetIng of the partIes' mmds, gIven theIr dispute over the contInuation of the gnevor's employment. While the eVIdence IS that the Dmon pOSItIon at the start of the October 3, 2002 seSSIOn was for the gnevor's Job to contmue, It IS uncontradIcted that the Dillon representatIves dId agree at the end of the seSSIOn to para. 1 of the terms of resolutIon, I.e., the gnevor's "present SUItable pOSItIon will be concluded as ofFnday Oct. 18/02 " In short, I find there was a meetIng of the mInds of the partIes on October 3,2002 and note there IS no eVIdence before me to establish that the Dillon dId not agree to that term, mdeed, the eVIdence IS uncontradIcted that the Dmon OffiCIalS present at the seSSIOn dId agree to that term. Further, the Dillon argued that the October 3,2002 agreement IS not a bInding contract for reason that there IS no conSIderatIon for the conclusIOn of the gnevor's Job on October 18, 2002, In that the Employer's obligatIons under the agreement are no more than ItS statutory or legal obhgatIon towards the gnevor However, as argued by the Employer, the terms of the October 3, 2002 agreement do proVIde for consIderation beyond ItS statutory or legal obhgatIOns to the gnevor SpecIfically, pursuant to para. 3) of the October 4,2002 statement of the terms of resolutIOn, the Employer has agreed that upon successful completion of the LMR program, It "will offer [the gnevor] the next available and SUItable pOSItIOn wmch leads to a full-time Job" Thus, regardless of other applIcants who may apply or have applIed for a pOSItIon that IS available and SUItable, the Employer has agreed that It will be offered to the gnevor, an oblIgatIOn It otherwIse does not have pursuant to art. 9 05 of the collectIve agreement: 905 - Job Postmgs .... ,. 26 a) Permanent PosItIons Where a permanent vacancy occurs III a classIficatIOn wIthm the bargamIng umt. such vacancy shall be posted for a penod of seven (7) consecutIve days In matters of promotIOn and staff transfer appoIntments shall be made of the semor applicant able to meet the normal reqUIrements of the Job That IS, pursuant to para. 3) of the October 4, 2002 statements of the partIes' agreement, the Employer has agreed that the only cntenon for the gnevor to meet to fill a sUItable vacancy IS that she successfully complete the LMR program, and she IS not reqmred to obtam the pOSItIOn pursuant to the Job poStIllgS procedures m the collectIve agreement. I find, therefore, that the October 3, 2002 terms of resolutIon do provIde for consIderatIon for purposes of the applIcatIOn of the common law of contract. Based on all the foregOIng, I find that the October 3, 2002 agreement between the partIes, as IdentIfied III the October 4, 2002 WSIB letter, precludes arbItral determmatIOn of the ments of the October 18, 2002 gnevances before me. I find that the subJect-matter of the gnevances was resolved by the partIes on October 3, 2002, and find that the Dmon IS properly bound by the terms of that agreement. The grievances, therefore, are dISmISsed. Dated at Toronto tins 11iJ, day of fYl~ , 2003 ~J;j~ fJ/f/Vii1!i-C WillIam A. Marcotte ArbItrator