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HomeMy WebLinkAboutBernardes 05-02-04 IN THE MA'ir'ER OF AN ARBITRATION BETWEEN: FRONTENAC YOUTH SERVICES (The Employer) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) RE: Grievance of Jose Bernardes For the Union: Peggy Smith Counsel Smith Eliot Jose Bernardes Grievor For the Employer: James N. Aitchison Counsel Aitchison Law Office Margaret Craw Executive Director Frontenac Youth Services Hearings in this matter were held in Oshawa, Ontario on September 30, 2004. DECISION OF PAMELA A. CHAPMAN, SOLE ARBITRATOR The grievance before me concerns the complaint of Jose Bernardes that he was terminated unjustly from his position as a Child & Youth Worker at Frontenac Youth Services in Oshawa, Ontario, on April 8, 2003. On the first day of hearing, the employer raised a preliminary objection that the matter had been settled and that I therefore have no jurisdiction to hear the matter. The parties agreed that I would hear evidence concerning that allegation, and rule on the question of jurisdiction before the merits of the case might proceed. As noted above, Jose Bernardes was terminated by the employer on April 8, 2003, and the same day filed a grievance alleging unjust termination and seeking reinstatement with "" ,u,I compensation. The parties met about a week later on April 15, 2003, to discuss the termination grievance. While there was some dispute about who was present at various stages during the meeting, and to what extent these individuals met together, I find that the Executive Director Margaret Craw, and the Chair of the Personnel Committee, Bob Johnson, were present on behalf of management, and David Cox, the union steward at Frontenac, Barry Casey, an OPSEU staff representative, and the grievor were there for the union. It is undisputed that during the meeting the parties discussed the possibility of settling the matter without the grievor being reinstated in employment. According to the Executive Director, the parties ultimately reached an agreement which consisted of three terms: (1) a resignation would be substituted for the termination, with the grievor signing a resignation letter; (2) the employer would agree to some restrictions on what it could say to prospective employers about the grievor; and (3) the gdevor would receive eight (8) weeks pay. Ms. Craw testified that she understood that these terms would be incorporated into a memorandum of settlement following the meeting, which would be signed by the employer, the union and the grievor. In her view there was no question that both parties, and the grievor, had expressed full agreement to the matter being settled, and the grievance withdrawn, on this basis. While she agreed that people likely came and went out of the meeting as these terms were negotiated, she was certain that everyone was present to confirm agreement to the settlement, including the grievor. Both David Cox and Barry Casey were subpoenaed by the employer and were called to testify concerning their recollection of the settlement discussions that day. They both recalled that the grievor's desire was to be reinstated, and that they went into the Step 2 meeting hoping to convince the employer to return him to Work, but in the day treatment program, where he would not have to work with the supervisor he felt was the cause of his problems. However, after some preliminary discussions with the employer it became clear that Frontenac was not prepared to contemplate a resolution which would involve the grievor's return to work. At that point the parties began to discuss the possibility of a monetary settlement. As negotiations progressed the two union representatives met in a separate room with the grievor, and Mr. Casey went back and forth between that room and the one occupied by the employer. While both union witnesses recall that the grievor did not immediately agree to settlement of the grievance on the basis of a resignation with compensation as outlined above, they testified that by the end of the meeting they had secured the grievor's agreement to the terms outlined in the settlement document entered into evidence. Later the same day the employer received three documents by fax from the union: a Memorandum of Settlement, letter of reference, and letter of resignation. The fax is marked as having been sent from the OPSEU office at 1:54 p.m. on April 15, 2003. Casey testified that he prepared these documents in accordance with the terms of settlement reached between the parties at the meeting earlier that day. Casey, Cox and Craw all gave evidence that the documents accurately reflect those terms. The employer took the Memorandum of Settlement to a meeting of its Board of Directors the following evening, and the Board authorized the employer to enter into the settlement, which is reflected in the minutes of that meeting. The Executive Director then signed the letter of reference and the Memorandum of Settlement, and forwarded both documents to the union. At some point the copy contained in the union's file was also signed by David Cox, possibly at the workplace at the same time as it was signed by Craw. Some time after the written settlement was drafted, the grievor advised David Cox that he was unhappy with the settlement reached and did not want to sign the Memorandum as drafted. Cox and Bernardes have different recollections of who contacted whom, when, and where, but these details are not significant in terms of the resolution of this preliminary issue. Whenever it was that they next discussed the settlement after the Step 2 meeting, it is not in dispute that the grievor indicated concern about the basis for calculating the wages payable, as he had worked for several years in the residential program which required more hours of work and thus a higher weekly pay cheque. It is also not in dispute that Cox contacted Craw after his conversation with Bernardes and asked her to adjust the calculation of wages accordingly. She agreed that six weeks of the compensation payable would be paid at forty (40) hours per week, and the remaining two at 37 ~ hours per week, 'which would have the effect of prorating the pay to the time he had spent in the two programs. Despite this agreement, the grievor continued to object to the settlement, which objection was communicated to Cox and passed on by him to Casey. It is not entirely clear whether or not Bernardes raised a more general objection to the settlement than the concern about the basis of calculation the first time he and Cox spoke, or on a subsequent occasion, but it is agreed that the union was aware sometime before May 5 that the grievor had taken the position that he would not agree to settle the case for eight weeks pay. On May 5, 2003 Casey wrote to Bernardes telling him that it was the union's view that there had been a settlement and that he expected the grievor to sign the Memorandum. On May 28, Cox sent a fax to the payroll clerk at the centre asking that a cheque be made up for the compensation payable to the grievor, in accordance with the clarified amounts. The cheque was issued on May 30, 2003. As it was not picked up, it was eventually sent to the grievor under cover of a letter dated June 3, 2003 from counsel for the employer, advising the grievor that the employer understood that he was attempting to repudiate the settlement and would oppose any such attempt, taking the position that the matter was settled. Some time later OPSEU agreed to refer the matter to arbitration, and it was eventually scheduled for hearing. Counsel was retained by OPSEU to represent the grievor and to advance his position that the grievance had not been settled and ought to be heard. The grievor's recollection of the settlement discussions and subsequent events differs in a number of important respects. During cross-examination of Cox and Casey it was put to them that the grievor would testify that he was never told that the amount of compensation payable if he agreed to resign would be eight weeks of pay. This was denied by both Cox and Casey, who asserted that the amount of severance was reviewed with the grievor, and that he ultimately agreed to the payment of eight weeks. When the grievor later testified on direct, he did not suggest that the figure of eight weeks had not been raised with him, and indeed said without being asked that Casey ' had told him that the employer would offer eight weeks. When counsel asked him what his response to this figure was, he testified that he told Casey that the amount was not satisfactory, that is was not acceptable to him, and that he wanted his job back. None of these statements were put to the union witnesses, and I do not find the claim that the grievor specifically rejected the offer of eight weeks to be credible, given the testimony of Casey and Cox, the complete absence of any possible rationale for them to lie about the grievor's position in the meeting, and these differing characterizations of the foundation for the gdevor's claim that he did not consent to the settlement. Different and conflicting explanations for his opposition to the settlement were also offered by the grievor throughout his testimony about the events following the step 2 meeting. In describing his next contact with Cox, he indicated that the steward called him' to ask him to come and see "the settlement that was written up", which is hardly consistent with the notion that the parties emerged from that meeting without a deal. And he first testified that he "didn't know any numbers that were involved" in the package, but then went on again to state that when he reviewed the settlement document with Cox he told him that "the eight weeks is still not what I had in mind". On cross the grievor confirmed again that he understood that eight weeks was the amount which was being negotiated with the employer during the step 2 meeting. The union witnesses called by the employer were also advised on cross that the grievor would testify that he understood that his proposal that he be reinstated to the day treatment program was still an option for settlement, which they both denied, testifying that the employer very quickly indicated that it was not prepared to consider a resolution which involved the grievor returning to work. The grievor then did not suggest on direct examination that he believed that the union was still negotiating to achieve a reinstatement, and clarified on cross-examination that he knew that the employer would not agree to reinstate, and that his only option should the matter not be settled on the basis of a resignation and compensation would be to proceed to arbitration. He certainly understood, and testified to the effect, that the employer would be taking "something", as he put it, forward to its Board of Directors immediately. Having carefully considered all of the evidence I do not find the grievor's version of the events surrounding the settlement negotiations and their aftermath to be plausible. While he may have felt when he left the Step 2 meeting on April 15 that the matter had not been fully settled and that he would have an opportunitY to reconsider the notion of a financial settlement, or its quantum, I find that he had in fact been advised that the offer was eight weeks (plus the other terms set out in the Memorandum of Settlement) and that he agreed, no matter how reluctantly, that the matter might be settled on that basis. I also do not accept that the grievor's later request that his pay be calculated in accordance with his hours of work in two different programs means that the deal was not a final settlement of the grievance. The fact that the parties to a settlement later resolve issues relating to its implementation does not void the fact of agreement. The rate of pay or number of hours at which a week's pay is to be calculated are classic examples of the kinds of implementation questions which are quite commonly left unresolved at the time a bargain is struck, but which do not allow one party or the other to resile from the settlement reached. This point was explored in the case of Canada Post Corp. and C.U.P.W. (Win/aw) (1993), 36 L.A.C. (4th) 216, in which the union attempted to reopen the terms of a settlement concerning compensation to a reinstated grievor because the parties had failed to deal with the payment of interest and the tax ramifications of the settlement. Despite the union's claim that these omissions created a "misapprehension going to the root of the contract", the arbitrator found that "there was consensus over the whole of the settlement package, even if each and every imponderable was not carefully canvassed for possible inclusion", concluding that "the fact that some issues might go unaddressed in a settlement of a compensation package does not mean that the parties have failed to effect settlement if finality is the essence of the understanding reached". In any event, it was not disputed that the union, through it representatives, expressed its agreement to the settlement, and maintained that agreement until the employer obtained the approval of its Board of Directors and communicated its acceptance of the deal by signing the memorandum. In light of this evidence I am bound to enforce the settlement; even if I had found that the grievor failed to consent to the terms set out in the memorandum of settlement, and in the face of his undisputed refusal to sign it. While union counsel placed great emphasis on the fact that the case in issue was a termination grievance, and that the consequences to the employee of a failure to proceed tO arbitration are therefore quite severe, these concerns do not alter the law in this area. It is the union, not the grievor, which is a party to the collective agreement, and the union which therefore has carriage of any grievance filed under its terms. The effect of these principles on the settlement of grievances was considered in the case of A. G. Simpson Co. and C.A.W. Local222 (1996), 58 L.A.C. (4th) 411 (Kennedy), where a union settled a number of grievances based on the employer's Step 3 reply on a seniority matter, and agreed that the terms agreed to would be a final resolution of "all grievances...on this subject". When ten further employees sought to file grievances, the local union declined to proceed with them because of the settlement it had signed. The national union attempted to reinstate the grievances, but Arbitrator Ross Kennedy ruled that they were inarbitrable due to the union's agreement, noting that "(i)t is an established principle that the parties to the grievance proceedings are the company and the union, and they are each authorized to enter into final and binding settlements of disputes between them". Applying that principle to the case before him, he found that "(t)he settlement reached was well within the authority and jurisdiction of the union without reference to individual members of the bargaining unit, and the company is entitled to rely on the settlement". Both union witnesses in this matter testified that the grievance was settled during the negotiations on April 15, 2003, subject only to the approval of the Board of Directors, which was promptly obtained. Following the taking of that step, the Memorandum of Settlement drafted by the union was signed by the Executive Director of the employer, Margaret Craw, and by the union steward, David Cox. The union's consent was further confirmed in the letter of Barry Casey dated May 5, 2003. In these circumstances, I must find that the grievance dated April 8, 2003, dealing with the termination of Jose Bemardes, was settled on the basis of the terms of the Memorandum of Settlement entered into evidence in this matter as exhibit 3, and that it is therefore inarbi~rable. The grievor is of course entitled to the benefit of those terms, and both parties should ensure that they are met. As the cheque earlier forwarded to the grievor was not apparently cashed, and must ~ow be stale-dated, the employer should in particular make arrangements to ensure that the compensation provided for in the agreement is paid to Mr. Bernardes. DATED AT OTTAWA THIS 4th DAY OF FEBRUARY, 2005 Pamela A. Chapman, Arbitrator