Loading...
HomeMy WebLinkAbout2003-1881.O'Brien.10-09-08 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2003-1881 UNION#2003-0999-0026 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (O?Brien) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREDeborah J.D. Leighton Vice-Chair FOR THE UNIONDavid Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYERGeorge Parris Ministry of Government Services Legal Services Branch Counsel HEARING July 9, 2010. - 2 - Decision [1]Ms. Cheryl O?Brien has three grievances before the board filed in 2003 and 2009 alleging,inter alia, that the ministry has violated her rights under Articles 2, 3, 9 and 20 of the collective agreement and breached the minutes of settlement (MOS) signed in 1995 and the board orders made pursuant to this settlement. She seeks to return to work and to be made whole. This decision addresses two preliminary motions made by the employer at the outset of the hearing. The first motion is to dismiss the grievances because the board has no jurisdiction to hear them since Ms. O?Brien is a member of the Ontario Provincial Police Association (OPPA). The union opposes this motion and takes the position that the grievor is a bargaining unit member of OPSEU. The employer?s second motion is to restrict the scope of the evidence should the case proceed to events occurring after minutes of settlement signed June 20, 2001. The union?s position here is that given the nature and history of the case, relevant evidence that predates the 2001MOS should be admitted back to the date of the 1995 MOS. The parties agreed to the following facts: 1.The grievor has been on LTIP since February 2010. 2.She has remained enrolled in and made contributions to the OPSEU pension plan. 3.To be in the OPSEU pension plan one must be a member of the bargaining unit of OPSEU 4.The grievor continues to receive changes in benefits that occur in changes to the OPSEU collective agreement. 5.But for being on LTIP the grievor?s position would have been transferred to the new OPPA bargaining unit. 6.The date of the certification of the OPPA bargaining unit was January 3, 2002. 7.Had the grievor not been on LTIP, there would be no dispute that she would be properly a member of the OPPA bargaining unit. 8.The grievor?s home position would have been transferred to the OPPA unit had she not been on LTIP. - 3 - The Employer?s Submission on the Jurisdiction Motion [2] Counsel submitted that the board has no jurisdiction to hear the grievances because Ms. O?Brien is a member of OPPA and not OPSEU. He submitted that the Public Service Act, R.S.O. 1990, c.P. 47, as amended by S.O. 2001, c.7 (PSA) governs the transfer of the employees to the OPPA unit. He noted that there was no case law on point as to the effect of a grievor being on LTIP when a transfer from one union to another occurs. However, he argued that the PSA and the labour board decision certifying OPPA as the bargaining agent for certain employees within the OPP, which included the grievor, are sufficient to support a finding that Ms. O?Brien is a member of the OPPA and not OPSEU: Ontario (Management Board of Cabinet) and OPPA and OPSEU [2002] O.L.R.D. No. 8 (OLRB). Counsel submitted that section 28 of the PSA provided a window of opportunity for OPPA to displace OPSEU as the bargaining agent of certain employees that work within the OPP. Counsel argued that section 28.0.8 deems what occurs if the association is successful in attaining sufficient votes to support the displacement application: 28.0.8 (1) If the association is certified as the exclusive bargaining agent for one of the three groups of public servants referred to in subsection 28.0.2 (1), (a) The trade union that previously was the bargaining agent for the group of public servants, AMAPCEO, OPSEU or PEGO, as the case may be, forthwith ceases to represent the public servants; and (b) The collective agreement between the employer and the trade union that previously was the public servants? bargaining agent ceases to operate in so far as it affects such public servants. [3] Counsel maintained that it was clear that Ms. O?Brien?s position was within the OPPA bargaining unit. He also noted that there is no reference to the job particularly, but the Act provides that it is the public servant that is represented by the association if certified. The statute makes no reference to how someone on leave is treated. He noted that when someone was on - 4 - leave, particularly on LTIP, they do not give up their home position unless there is some agreement between parties to do so. Counsel also noted that the MOS signed in 2001 clearly contemplates the grievor returning to work at some point in the future. [4] In sum, counsel argued that the board is bound by both section 28 of PSA and the decision of the OLRB on January 2002, which certified OPPA as the bargaining agent of these particular employees with the OPP. He argued that without an agreement to return to something other than her home position, it was clear and I must find that the grievor is properly a bargaining unit member of OPPA. Counsel acknowledged that Ms. O?Brien continued to collect benefits under the OPSEU collective agreement and to contribute to the OPSEU pension fund after OPPA was certified. However in his submission this does not alter her status and that I should declare that she is a member of OPPA. Thus, this board has no jurisdiction to hear her grievances. The Union?s Submission on the Jurisdiction Motion [5] Counsel for the union argued that the position taken by the employer ignores the fact of how the parties have treated the grievor over the last eight years. The parties have agreed that she is still in OPSEU and she has been treated accordingly. She continues to pay into the OPSEU pension plan and take the benefit of changes to the collective agreements that have been negotiated while she has been on LTIP. [6] OPPA were given notice of the grievances and the jurisdictional issue and have indicated that they make no claim that she belongs in their bargaining unit. The grievor alleges that she did not have notice of the vote for the decertification of OPSEU, nor did she vote in the process. - 5 - Counsel submitted that Ms. O?Brien did not fall within the voting constituency although her job did. When a person is on LTIP they do not get counted in the group. [7] Counsel argued further that the treatment of Ms. O?Brien here is consistent with how the parties treat anyone on LTIP when there is a change in the person?s job. He argued that it is the collective agreement that governs in this case. As an example of when a grievor?s rights are suspended when they are on LTIP, he noted Article 3.2 of Appendix 18 which states that the parties have agreed that an employee who is effected by a transfer of work to a new employer who is on LTIP shall remain an employee of the Crown until able to return to work. After the return to work surplus provisions in the collective agreement will apply. The collective agreement further provides, in Article 42.10, that when an employee is ready to come back to full time employment the provisions of Article 20, (Employment Stability) apply. Counsel for the union also relied on OPSEU (Samsone) and the Ministry of Community, Safety and Correctional Services [2009] O.G.S.B.A. #3 (Petryshen) in support of this point. Here the board noted that under Article 42.10 there was an agreement between the parties, that when a person is on sick leave or is either receiving LTIP benefits or is eligible to receive LTIP benefits, any transfer or surplus is held in abeyance until the person returns from being off sick. Thus, for the last eight years, the employer and OPSEU have treated Ms. O?Brien as a member of the OPSEU bargaining unit. Counsel argued that this is consistent with the fact that she did not fall under the voting constituency for OPPA certification. [8] In summary, counsel argued that the board should not ignore the clear agreement or understanding between the parties that Ms. O? Brien has been an OPSEU member for the last eight years. Further, he urged that I should not ignore that OPPA is not claiming her as a - 6 - bargaining unit member. Counsel contended that this treatment is consistent with how other employees on LTIP are treated. He argued further that finding that Ms. O?Brien is a member of OPSEU does not contradict the PSA or the OLRB certification order of OPPA. Finally he submitted that I should not let the employer defeat the grievor?s right to a hearing because the employer is now taking the position that grievor is not an OPSEU member. Reply Argument [9] Counsel for the employer argued briefly in reply that he is unable to dispute that Ms. O?Brien did not get notice of the vote, but in his view it did not affect the decision that should be made here. He argued that nothing changed in Ms. O?Brien?s employment: there was no transfer of work to a new employer or surplus. The only change that was made was in the bargaining agent. Thus Appendix 18 provisions were not applicable. He further noted that to take a person off one LTIP plan and put them on another when there is a change in bargaining unit could be detrimental to the grievor. So, Ms. O?Brien continued under the LTIP plan with OPSEU. Decision on the Jurisdiction Issue [10] Having carefully considered the submissions here, I have decided to dismiss the employer?s first motion. The union?s argument must prevail. It is a well established practice of these parties to suspend the status of an employee who is receiving LTIP. This is what has occurred in Ms. O?Brien?s case. She was on LTIP at the time OPPA was certified as the bargaining agent for certain employees of the OPP. And so she remained in OPSEU. She continued to pay into the OPSEU pension plan and take any benefit owing from collective agreements bargained over the nine years that she has been on LTIP. As counsel for the - 7 - employer properly pointed out it might be disadvantageous to move an employee from one LTIP provider to another. Therefore, Ms. O?Brien remained on the benefit provided under the collective agreement between these parties. This fact tends to support the decision that she remains in OPSEU while she is on LTIP. [11] I am satisfied that this decision does not contradict the PSA or the OLRB?s order to certify OPPA. The language of the statute does refer to the transfer of the public servant upon the certification of a new bargaining agent, but in Ms. O?Brien?s case, since her status was suspended while on LTIP, she could not transfer.The parties have agreed that had she not been on LTIP she would have become a member of the OPPA unit. Thus, it would seem sensible to conclude that although she remains in OPSEU while on LTIP, as soon as she returns to work the transfer to the OPPA would take place unless the parties agree otherwise. Employer?s Submission on the Scope of the Evidence [12] The employer?s second motion is for an order that evidence of events that occurred before the MOS of June 20, 2001 should not be admitted in the current matters. Counsel for the employer argued that the union must not be permitted to rely on facts or evidence of matters that have been settled. Thus the union should not be allowed to rely on any of the evidence relating to the November 22, 1999 or December 11, 2000 grievances, including the period of time between the date of the grievances and the date of the MOS on June 20, 2001. [13] Counsel for the employer argued that the board has addressed the issue of the importance of the sanctity of settlement thoroughly in recent decisions. He argued that the test that has - 8 - emerged from the board is that there must be exceptional circumstances to permit evidence of matters preceding an MOS. [14] Counsel argued that there is no blanket prohibition that evidence between the date of the grievance and the date of the MOS is excluded or admitted. He said what is important here is the type of complaint that has been settled. He argued that when we look at the particulars of events that occurred between the date of the 1999-2000 grievances and the MOS in 2001, it is essentially events of the same nature that gave rise to her grievances and her going off on LTIP. Thus, it is the employer?s position that the events around Ms. O?Brien?s attempt to return to work in December 2000 and her eventual frustration with her treatment, which lead to her going back on LTIP in February 2001, should not be permitted in evidence for the 2003 and 2009 grievances currently before the board. [15] Counsel argued that the grievances filed on December 11, 2000, complaining about the treatment of the employer in returning her to work, could not have contemplated the frustration of what occurred in the next few months after she filed the grievance. He argued that the MOS shows that the parties included events subsequent to the grievances in the 2001 MOS. He pointed me to paragraph one in the MOS where the parties agreed that they would meet and discuss the terms and conditions of the grievor?s return to the work place before her actual return. [16] Counsel submitted that the MOS addressed the grievor?s complaint of wrongful surplus. Further, the grievor had complained about certain general information forms being put in her personal file, many of which were dated between the December 11, 2000 grievances and when - 9 - she left the workplace on February 2001. The MOS provided that these would be removed from her personal file. Counsel also emphasised that paragraph six of the MOS stated that the grievor and the union agree to withdraw the above noted grievances and any and all outstanding grievances. Thus counsel argued that this included any complaint that might have occurred up until the date of the MOS. In counsel?s submission the parties were trying to create a clean slate. Thus paragraph six of the MOS was intended to cover all matters that predate and postdate the December 11, 2000 grievances until June 20, 2001. [17] Counsel argued in summary that no evidence should be permitted of events that predate the minutes of settlement unless some special circumstances are proven to show that the evidence should be permitted. In this case there are no special circumstances that justify the litigation of issues and events that have been settled. Therefore the MOS of June 20, 2001 must be found to include all the issues which arose between the grievance date and the minutes of settlement. Counsel relied on the following cases in support of his argument: OPSEU (Fletcher) and Ministry of Community Safety and Correctional Services (2006) GSB 2004-0083 et al. (Leighton);OPSEU (Rolfe) and Ministry of Community and Social Services (2006) GSB 2003- 3512 et al. (Briggs); OPSEU (Hawkes) and Ministry of Community Safety and Correctional Services ( 2009) GSB 2007-2388 (Leighton); OPSEU (Asselstine) and Ministry of Community Safety and Correctional Services (2006) GSB 2005-2137 (Carrier). Union Submission on the Scope of the Evidence [18] Counsel for the union acknowledged that it is well established that the board will only allow evidence of matters settled with an MOS in exceptional circumstances. He noted that the - 10 - decisions to exclude evidence that predates a matter settled by MOS is an exception to the general rule that all evidence that is relevant should be admitted. [19] Counsel argued that this case has exceptional circumstances and that the evidence should be allowed. It is exceptional because of the nature of the allegations and given the grievor?s personal circumstances. These allegations go back to what occurred in the mid 90s in the Windsor Jail. The original case settled by way of minutes of settlement in 1995 gave the grievor a job with the OPP after certain training was to be finished. The grievor alleges that the harassment and discrimination began at the beginning of her work with the OPP and continued throughout her tenure there. [20] Counsel noted that the primary allegation in the grievances before me now is that Ms. O?Brien is off sick because of the employer?s failure to provide a safe and healthy workplace. He argued that it was not possible to subdivide the story of what has occurred to her since she began her complaint in the early 90s. [21] Another reason the board should make an exception and allow this evidence is because at the time that Ms. O? Brien signed the minutes of settlement in 2001 she was on LTIP. Counsel argued that there was no case before me with a similar circumstance. Therefore, he contends that the board has the power and should allow the evidence because there are exceptional circumstances. Counsel confirmed that the union is not seeking to overturn the MOS signed in 2001. However, he argued that the grievor?s health at the time of signing the MOS has to be considered. He took the position that when the grievor signed the MOS she was impaired. The - 11 - medical evidence provided by way of a doctor?s letter dated 2008 refers to seeing Ms. O?Brien in early 2002 when she was severely ill. [22] For the purposes of a preliminary, counsel submitted that I have to assume that the allegations put forward in the particulars are provable and that grievor is on LTIP because of the inaction or inappropriate action of the employer. Her post traumatic stress disorder and depression all arise from her experience in the workplace. Counsel argued that the employer has acted in such bad faith that it should not be allowed to rely on a minutes of settlement to argue that evidence should be excluded. [23] Counsel acknowledged that the sanctity of settlements is an important principle, but he argued that in this case, to decide to exclude the evidence would do a disservice to the grievor. The union may not be able to prove links between the events and the illness, but he argued, that I should not make a decision without hearing all of the evidence in the case. Thus, Counsel submitted that the whole story should be permitted, starting with original MOS in 1995. Thus, it is because of the bad faith, discrimination and the severe consequences on the grievor that the board should allow the evidence. [24] Counsel also addressed the language of the 2001MOS. He emphasized that there was no standard release clause. Further, there was no language that states that the grievor or the union cannot rely on facts before the date of the grievance that were settled with these minutes. Indeed, Counsel points out that it does not say that all the issues were resolved; rather, the first paragraph refers to meeting with the grievor and her union representative to discuss the terms and conditions of a return to work when she is fit to return. - 12 - [25] In the alternative, counsel argued that while the union would like to tender all the evidence from 1995, they should at least be able to put the evidence in from December 11, 2000, the date of the last grievances filed and settled by the 2001 MOS. Counsel for the union relied onOPSEU (Waraich) and the Ministry of Labour (2004) GSB 2003-0187 (Watters) in support of his submission. Employer?s Reply Submission [26] Counsel for the employer replied that with regard to the union?s comments on the 2001 MOS, it was clearly not resolving all of the accommodation issues which were still outstanding and could not be resolved with these minutes. With regard to the union?s submission on the exceptional circumstances on this case, counsel argued that the grievor?s cases before me are not distinct or exceptional. Counsel argued further that there are no allegations that the employer acted in bad faith in settling the grievances of 1999 and 2000 in the minutes of settlement in 2001. In so far as the union has argued that the employer has acted in bad faith in not providing a safe and healthy workplace, these allegations are not enough to justify exceptional circumstances. [27] Counsel argued that the fact that the union is not seeking to overturn the 2001 MOS is determinative of the mental stability of the grievor. He emphasized that the grievor had the benefit of union representation and that the medical information before me is inadequate to prove that Ms. O?Brien was incapacitated when she signed the MOS in 2001. The doctor giving his opinion did not see the grievor until 2002, well after the 2001 MOS was signed. Even if she was not well, in counsel?s submission, the union signed off on the grievance. - 13 - [28] In concluding, counsel argued that what is needed to prove the current grievances is evidence of events which post date events that have already been settled. Decision on the Scope of the Evidence [29] Having carefully considered the submissions of the parties, I have decided to grant the employer?s motion in part. The 2001 MOS includes language that clearly settles three of Ms. O?Brien?s then current grievances, the last dated December 11, 2000. The parties essentially agree on the law as I must apply it: the board has consistently held that in order to foster settlements, parties must be held to their agreements. Only in exceptional cases will evidence which predates minutes of settlement be allowed. I will not repeat the analysis in Hawkesor Fletcher, but I adopt it for the purposes of this decision. [30] The union argues that there are exceptional circumstances here --primarily because of the kind of allegations made by the grievor and her health when she entered into the 2001 MOS. I find the argument that the grievor was incapacitated at the time she signed the MOS to be somewhat troubling, given the grievor had union representation and the union does not resile from the MOS. However, the medical is inadequate to prove that Ms. O?Brien was incapacitated in June 2001, when she signed the minutes, so I am spared further analysis. [31] The employer argues that the grievor?s circumstances are not significantly different to the cases before me. And I agree that Ms. O?Brien?s allegations are similar to those in the Hawkes andFletcher cases, in terms of the kind of allegations. In these cases the union also argued that for the sake of continuity the evidence of matters settled by an MOS should be admitted, even for a limited purpose, such as remedy. The evidence was not permitted because it would be - 14 - fundamentally unfair to allow evidence of settled matters to support a new grievance, without exceptional circumstances such as some very clear indication that the employer had acted in bad faith. The union alleges that here, but I am also not convinced that the employer acted in bad faith in entering either the 1995 MOS or the 2001 MOS or that the allegations of treatment after the 2001 MOS amount to bad faith, if accepted as proven. [32] Thus, I am not persuaded that that there are exceptional circumstances that warrant allowing evidence to be admitted in this case going back some fifteen years. Further, I am convinced that the potential harm to settlements between these parties in future cases and to labour relations is too great. I am also mindful of the inherent prejudice to the employer of trying to defend allegations going back some fifteen years. Thus, the balance of interests favours the employer. [33] The employer also seeks to exclude evidence of matters, which occurred after the December 11, 2000 grievances settled by the 2001 MOS. Counsel for the employer argued fairly convincingly that since incidents which occurred after the grievances were filed were included in the MOS, I should not admit evidence between December 11, 2000 and the 2001 MOS. However, there is no clear language in the MOS that states that the settlement covers all issues to the date it was signed, so I am reluctant in this case to preclude it at this stage of the proceedings, if it might be relevant. - 15 - [34] In summary, for the reasons noted above the employer?s first motion is denied and the second is granted in part. th Dated at Toronto this 8 day of September 2010. Deborah J.D. Leighton, Vice-Chair