HomeMy WebLinkAbout2015-3089.Alleyne.22-08-02 Decision
Crown Employees
Grievance Settlement
Board
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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#2015-3089
UNION#2016-5112-0009
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Alleyne) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Stephen Raymond Arbitrator
FOR THE UNION Rebecca Jones
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Julia Evans
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING April 29, 2022
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Decision
Introduction
[1] Jodhi Alleyne (“Alleyne”) has been a correctional officer since 2008. She is a
single mother. This decision addresses the interplay of two grievances filed by
her. The first was filed on April 2, 2015 (“the 2015 grievance”). That grievance
was settled on June 26, 2019 and Alleyne provided the Employer with a release.
The grievance before me was filed on January 17, 2016. The Employer says that
I should restrict Alleyne from relying on the facts of the 2015 grievance in respect
of this grievance. It states that those facts were settled and further that a release
was provided in respect of any other facts that could have formed part of the
2015 grievance.
[2] On November 17, 2020, the Union provided the Employer with particulars of the
grievance. The Employer brings a preliminary motion to strike the paragraphs of
the particulars that pre-date the 2015 grievance.
[3] The question I must answer is whether Alleyne is prevented from relying on the
facts that occurred before the filing of the 2015 grievance in this grievance
because she settled the 2015 grievance and signed a release. I conclude that
some of the particulars should be struck and that others may remain. The 2015
grievance and this grievance both relate to the accommodation of Alleyne’s
family status. The particulars up to the date of the 2015 grievance in respect of
the accommodation of Alleyne’s family status should be struck and may not be
relied upon in the hearing of this matter. There are particulars that the Employer
sought to strike out that are unrelated to family accommodation and/or post-date
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April 2, 2015 that should not be struck and may be relied upon in the hearing of
this matter.
Issues
[4] In addressing the motion, I consider the following questions:
1. What was the 2015 grievance about?
2. What claims were resolved by the settlement of the 2015 grievance?
3. What is the impact of the settlement of the 2015 grievance on the Union
particulars of this grievance?
Issue 1 – What was the 2015 grievance about?
[5] The parties disagree about what the 2015 grievance was about. The Union states
that it is simply about lost overtime opportunities. The Employer says it is also
about a failure to accommodate Alleyne’s family status. The 2015 grievance, again
dated April 2, 2015, was handwritten. The parties agreed on a transcription as
follows:
“I was given an accommodation with specified hrs of 18-0600hrs. I never
agreed to said accm.as it did not fit my family needs. In receiving this
accommodation I was restricted to these hrs only therefore inabling me the
opportunity to work overtime as my name was removed from all shifts on
HPRO. In HPRO it states that messages were received by me however no
one called me from Mar 19 onwards due to the accommodation. I wish to
be reimbursed for the days that I was neglected to be offered.”
[6] The Union asks that I determine that the 2015 grievance was about a very narrow
event, the loss of an opportunity to work overtime. It says that a plain reading of
the grievance should lead me to that conclusion. It relies, as well, on the settlement
of that grievance. The only thing that Alleyne received was eight hours of overtime
pay. The accommodation of her family status was not addressed in the settlement.
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[7] The Employer asks that I give a broad reading to the 2015 grievance. It notes that
the words family needs and accommodation are specifically mentioned in the 2015
grievance.
[8] In reading the 2015 grievance, it appears that Alleyne is complaining about two
distinct things. First, she is being accommodated due to her family status in a
manner that is not agreeable to her. Second, the effect of the accommodation is
that she is not being offered shifts that she would be able to work. I find that the
grievance is about both overtime and family status accommodation.
Issue 2 – What claims were resolved by the settlement of the 2015 grievance?
[9] The settlement of the 2015 grievance occurred on June 26, 2019. The settlement
provided Alleyne with an overtime payment in exchange for the withdrawal of the
2015 grievance. It settles any claim for missed overtime opportunities up to April
2, 2015. The Union agrees with that and does not question the importance of the
“sanctity of settlements”. Rather, it asks that I permit it to set out the facts prior to
April 2, 2015 in support of this grievance. Those facts, it asserts, help to illustrate
the context and pattern of discriminatory behaviour in relation to the
accommodation of her family status.
[10] The Board has a general rule that it will permit a grievor to rely on events for up to
three years prior to the date of grievance in support of an assertion of a violation
of, among other things, human rights. In Ontario Public Service Employees’ Union
(Cross et al) v Ontario (Community Safety and Correctional Services) 2015 CanLII
60421 (ONGSB), (Misra), Arbitrator Misra stated at paragraph 57:
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In developing the three-year guideline, the Board has recognized that there
may be a course of conduct that is not immediately recognized as
harassment and/or discrimination, and that it may take some time before
otherwise apparently innocent or innocuous actions may be seen as part of
a course of conduct.
[11] Following the general rule, therefore, a grievance, as here, dated January 17, 2016
would permit Alleyne to set out the sequence of events that occurred back to
January, 2013. But for the settlement of the 2015 grievance, I would permit
particulars back to January 2013 and none of the particulars provided by the Union
would be struck.
[12] Because the Union and Alleyne settled the 2015 grievance, I cannot simply follow
the general rule. The 2015 grievance was settled after filing the current grievance.
This Board has held that “(t)he sanctity of settlements reached between the parties
is paramount. The parties must be held to settlement of grievances except in very
exceptional circumstances. This is so with or without negotiated release language”:
Ontario Public Service Employees’ Union (Greco) v. Ontario (Ministry of
Transportation), 2015 CanLII 39334 (ONGSB) (Dissanayake); see also - Ontario
Public Service Employees’ Union (Fletcher) v. Ontario (Ministry of Community
Safety and Correctional Services), 2006 CanLII 30731 (ON GSB) (Leighton);
Ontario Public Service Employees’ Union (Hawkes) v. Ontario (Ministry of
Community Safety and Correctional Services), 2009 CanLII 43624 (ONGSB)
(Leighton). I did not have put in front of me any facts that would lead me to
conclude that the circumstances in this grievance are any more likely to create
“very exceptional circumstances” than in the cases I have referred to above.
[13] The Board has decided that where there is a settlement and withdrawal of the prior
grievance, that it will not permit a party to litigate the facts that have been settled.
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[14] In this matter, the settlement went further and provided a comprehensive release.
It states, in part:
The Grievor and Union agree to release and forever discharge the
Employer, its servants, agents, directors or and from all actions, differences,
causes of actions, claims and demands of every nature and kind arising out
of or related to the above-noted grievance which she has or may have
against the Employer, including but not limited to all claims arising under
the OPSEU Collective Agreement, the Public Service of Ontario Act, 2006,
the Human Rights Code, the Occupational Health and Safety Act, the
Employment Standards Act, 2000 and at common law.
[15] I have found that the settlement of the 2015 grievance would preclude Alleyne from
relying on the facts relating to family status that were present in support of the 2015
grievance. Even if the Union were correct and the 2015 grievance was not about
family status accommodation and only about a loss of overtime opportunities, I
would still have to consider whether the existence of the release would mean that
Alleyne was prevented from raising those facts. To me, the release as worded
would preclude Alleyne from relying on facts about family status accommodation
up to the date of the 2015 grievance as those facts are ones that are “arising out
of or related to” the 2015 grievance.
Issue 3 – What is the impact of the settlement on the particulars?
[16] A straightforward approach to this matter is to divide the particulars into those that
occur after April 2, 2015 and those that occur prior. Those that occur after may
remain. For those that occur prior, they should be subdivided into two categories.
The first is those that relate to family status accommodation. Those are settled by
the settlement of the 2015 grievance and may not be relied upon. The second is
those that are not about family status accommodation.
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[17] There is a series of paragraphs in the particulars that relate to communications
between Alleyne and the Employer about training. These are not matters that were
settled. They were not the subject matter of the prior settlement. There is no
indication on the face of the prior grievance that the grievance was in any way
about her training.
[18] The question of whether Alleyne’s claims about training are released turns on
whether in the words of the release those claims “arise out of or are related to the
above-noted grievance”. In my view, they are not either arising out of the prior
grievance nor do I see a connection in which it may be determined that they are
related to the prior grievance. It is for that reason that the paragraphs that relate to
training are not struck.
[19] As to the particulars themselves, my disposition is as follows:
a. Paragraph 4 is a statement that relates to her family status and is struck;
b. Paragraph 5 refers to an accommodation meeting prior to April 2, 2015
and is struck;
c. Paragraphs 6, 7, 10, 15, 17 refer to training and are not struck:
d. Paragraphs 8, 9 and 11 to 14, 16 appear to be the exact events that led
to the filing of the April 2, 2015 grievance and are struck:
e. Paragraph 18 to 22 are events that occurred after April 2, 2015 and are
not struck.
Dated at Toronto, Ontario this 2nd day of August 2022.
“Stephen Raymond”
Stephen Raymond, Arbitrator