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HomeMy WebLinkAbout1994-0232.Sidhu.11-02-23 Decision Commission de Crown Employees Grievance Settlement UqJOHPHQt des griefs Board dHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pl. : (416) 326-1388 x (416) 326-1396 7pOpF   Fa GSB#1994-0232 UNION#94D367 IN THE MATTER ARBITRATION OF AN Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Sployees Union ervice Em (Sidhu) Union - and - The Crown in Right of Ontario (Ministry of Agriculture, Food, and Rural Affairs) Employer BEFOREVice-Chair Bram Herlich FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Brian Loewen Ministry of Government Services Legal Services Branch Counsel HEARING November 13 & 24, 2009, April 6, 2010, December 17, 2010. - 2 - Decision [1]This case was resolved some eight years ago. The grievor (not for the first time) asserts that the employer has failed to live up to the obligations of the settlement. [2]The terms of the initial settlement, dated March 26, 2003, were confidential and involved two grievors. It is not necessary for me to set out the settlement in full. For our current purposes it is sufficient to note that it provided (in paragraph 5): The Employer agrees to provide the Grievor, Kam Sidhu, their employee and OPSEU member, with copies of the Topical / Job Mart, or there [sic] substitutes or replacements, delivered to the GrLHYRU>¶@VKRPHSURPSWO\XSRQLVVXH commencing from the date of the execution of this settlement. This will allow the Grievor, Kam Sidhu, the opportunity to apply for any Article 6 and 8 positions to which she may choose to apply. [3]At the time of the settlement, the grievor was off work on long term disability, a status she has maintained up to and including the most recent hearing in this matter. Indeed, it was agreed that the grievor was currently and for the foreseeable future, unable to actively return (with or without accommodation) to any position within the bargaining unit. But while that state of affairs may have been as true at the time of the initial settlement as it is now, the parties, nonetheless, agreed to include the above paragraph in their settlement. [4]There were some difficulties in the implePHQWDWLRQRIWKHSDUWLHV¶DJUHHPHQWDQG the matter was the subject of hearing by way of teleconference on two occasions in 2003. Some four years later the matter was brought on for a more formal hearing by the union which alleged the employer had breached its obligations under the terms of the paragraph reproduced above DQGVXEMHFWWRWKHSDUWLHV¶GLVFussions in the course of the 2 teleconferences held earlier). [5]The result of that hearing was a further Memorandum of Settlement, dated October 5, 2007 which, in turn, resulted in an Order of this Board, dated October 17, 2007 in which (a portion of) the partieV¶DJUHHPHQWZDVUHSURGXFHGThe new relevant paragraph included the terms of the paragraph set out earlier with the addition of one further sentence (that addition is highlighted): - 3 - The Employer agrees to provide the Grievor, Kam Sidhu, their employee and OPSEU member, with copies of the Topical / Job Mart, or there [sic] substitutes or replacements, delivered to the GrLHYRU>¶@VKRPHSURPSWO\XSRQLVVXH commencing from the date of the execution of this settlement. This will allow the Grievor, Kam Sidhu, the opportunity to apply for any Article 6 and 8 positions to which she may choose to apply. The Employer agrees to provide hard copies of WKHDERYHE\&RXULHUWRWKH*ULHYRU>µ@VKRPH [6]The parties were directed by the Board Order to comply with the terms of the above paragraph. [7]It appears that it took little time for the grievor to again raise issues regarding the HPSOR\HU¶VFRPSOLDQFHZLWKWKHVHWWOHPHQW DVDPHQGHG 7KHPDWWHUZDVEDFNRQIRUKHDULQJ before me less than a year later, commencing on November 12, 2008. [8]On that day the parties made some (unsuccessful) efforts to once again resolve the matter. The employer sought and the union agreed to provide full particulars in support of its claim(s). In addition, the employer expressed its view that this matter could not be properly GLVSRVHGRILQWKHXQLRQ¶VIDYRXUZLWKRXWFHUWDin medical evidence, perhaps for dual purposes. First, the employer asserted that, given its understanding that the grievor could not, currently or in the near future, return to work, there was no purpose to be served by its continuing obligation to provide, with actual delivery by courier, documents to the grievor regarding job opportunities. And, in the absence of any medical evidence of current ability or SURJQRVLVWKHSDUWLHV¶ agreement ought to be amended to relieve the employer of an onerous ongoing weekly obligation to courier documents to the grievor when no labour relations purpose would be served by that delivery. (I have already noted that, ultimatelyWKHJULHYRU¶VFXUUHQWDQGprospective inability to return to work became an agreed fact between the parties.) [9]The employer also asserted that, at least to the extent that the grievor was seeking damages for pain and suffering or mental distress, any such claim should be supported by medical evidence. - 4 - [10]The matter then came back on for hearing on November 13, 2009. At that time WKHXQLRQILOHGDEULHIOHWWHUIURPWKHJULHYRU¶Vpsychiatrist. In the face of that report, the employer again asserted that further medical information would be required to establish or clarify any claim for damages in the nature of pain and suffering or emotional distress arising out RIWKHHPSOR\HU¶VDOOHJHGEUHDFK,WZDVLQWKHface of that continuing position that the parties agreed that the grievor was totally disabled since at least October 2007 (the date of the Board Order referred to above), continues to be so, and is unable, currently or in the immediate future, to return to work in any position. The union, however, agreed to facilitate the production of further medical information. [11]In the interim, and subject to the treatment of any medical evidence and the need for any further viva voce evidence from the grievor, we heard her testimony and cross- examination. [12]The matter was next scheduled to continue on April 6, 2010. At that time, the medical evidence (the union having provided the employer with further medical reports) continued to be a matter of some dispute between the parties. Having considered their submissions in that regard, I issued a decision dated April 13, 2010, the material portions of which provided as follows: The union has provided the employer with medical reports upon which it may rely in these proceedings. The employer has indicated that, should the union be seeking to rely on these reports, the physician who prepared them ought to be made available for cross-examination. In addition, the physiciaQ¶VFOLQLFDOQRWHVLQUHVSHFWRIWKH grievor, for the period October 2007 to the present, as well as any other documents upon which the physician relied in preparing his reports of November 2007 and March 15, 2010 ought to be produced in advance of the hearing. In the circumstances, should the union intend to rely on these reports, it is hereby directed to facilitate the attendance of the physician for cross-examination and the production of the notes and documents referred to above. - 5 - [13]The matter was next scheduled to continue on December 17, 2010. At that time, the union advised that it would not be seeking to rely on any of the medical evidence previously filed with the Board or provided to the employer. The parties indicated they had no further evidence to call and proceeded to final argument. [14],QDGGLWLRQWRWKHJULHYRU¶VYLYDYRFHHYLGence, a number of exhibits were filed. These included documentation prepared initiall\E\WKHHPSOR\HU¶VFRXULHU7KHVHGRFXPHQWV were filed on the initial hearing day in November 2008. They span October 2007 (the date of the %RDUG¶VRUGHULQFRUSRUDWLQJWKHSDUWLHV¶DJUeement to courier delivery) to April 2008. The specific selection of the end date by the employer, who prepared and filed these materials, was not expressly articulated; it may bear some temporal relationship to the union seeking to list the matter for hearing. However, it was not until a year after the filing of those documents that the grievor testified before this Board. Her evidence adverted to asserted employer failures from October 2007 up to and including November 2009. Neither the grievor nor the employer provided any documentary evidence whatsoever to establish or negate any alleged failure of the employer to comply with its settlement obligations during the May 2008 to November 2009 period. [15]There was no dispute that, at least by and large, under the terms of the parties agreement, the materials in question, given their frequency of issuance, were required to be forwarded to the grievor on a weekly basis.Based on the documentary evidence and subject perhaps to some variation, the employer has been retaining a courier to deliver the materials to WKHJULHYRU¶VKRPHRQDZHHNO\EDVLV+RZHYHULI the grievor is not available to accept delivery, it appears that the courier (has peUKDSVEHHQLQVWUXFWHG WROHDYHDQRWHDWWKHJULHYRU¶VUHVLGHQFH advising that the materials are available for pick up at the courLHU¶VGHSRW7KHGRFXPHQWDWLRQ spanning October 2007 to April 2008 shows that roughly half of the deliveries effected were UHFHLYHGDWWKHJULHYRU¶VKRPHand the other half were picked up by the grievor. There was no objection, in principle, to this aspect of the delivery scheme. The complaint centers on allegations of non-delivery, late delivery or delivery of incomplete materials. [16]The grievor testified that the timely delivery of these materials was extremely important to her, she viewed the settlement paUDJUDSKLQTXHVWLRQDVWKH³RQO\VHQVHRIMRE - 6 - VHFXULW\´WKHHPSOR\HUZDVZLOOLQJto provide. (The grievor took every opportunity to return to her apparently ongoing sense of grievance with respect to the events which gave rise to the initial VHWWOHPHQWLQ±WKDWRIFRXUVHLVRIQRUHOHYDQFHWRWKHVHSURFHHGLQJV±LQGHHGDVZLOOEH clear, dissatisfaction with the teUPVRIDVHWWOHPHQW±UHJDUGOHVVRIZKLFKSDUW\PD\IHHOLW±LV not material to these proceedings). She also testified that the failure to provide these documents (or to provide them on time) had a major impact on her emotional well being. Indeed, the union is seeking damages in the amount of $70,000, based upon the asserted psychological impact and mental harm caused to the grievoUE\WKHHPSOR\HU¶VDOOHJHGEUHDFK [17]However, despite the asserted extreme importance of the delivery of job vacancy information about positions she was not fit to assume, the grievor apparently felt no need to keep any records whatsoever, either before or after the union sought to list this matter for hearing. So while we had documentary evidence from the employer to provide a context for any claims during the October 2007 to April 2008 period, any evidence related to alleged violations of the settlement from May 2008 to November 2009 were EDVHGH[FOXVLYHO\RQWKHJULHYRU¶VYLYDYRFH evidence, entirely unsupported by any documentary or other evidence. [18],QWKDWFRQWH[WWKHH[WHQWRIWKHJULHYRU¶VHYLGHQFHLQUHODWLRQWRWKHQRQ documented period was a request for the employer WR³FRQILUP´EHFDXVHVKHZDVQRWFHUWDLQEXW believed that she was missing (some unspecified number of) September 2009 deliveries (she offered the confusing juxtaposition of indicating her records showed nothing, i.e. no deliveries, with her acknowledgement that she had no records; that there were 2 weeks with no delivery in July 2009; and that she thought she missed a couple of weeks in February and March 2009 as well. [19]As indicated, the employer did not provideDQ\RIWKH³FRQILUPDWLRQ´WKHJULHYRU sought. Indeed, there was some sparring between counsel as to who bore or had met what evidentiary burden in this and some other contexts. [20]It may well have facilitated my task had the employer provided similar documentation to that tendered in relation to the earlier period. And I also accept that its failure to so might ultimately be fatal on the liability issue LIWKHXQLRQ¶VHYLGHQFHKDGbeen sufficient to - 7 - establish a prima-facie case thereby shifting the evidentiary onus.I am entirely unpersuaded, KRZHYHUWKDWWKHJULHYRU¶VHYLGHQFHULVHVWRHYHQthat minimal standard. I find it curious in the extreme that, even after these proceedings had commenced, the grievor felt no apparent need to LQDQ\IDVKLRQGRFXPHQWWKHHPSOR\HU¶VDVVHUWHGEUHDFKHVZKLFKZHUHVDLGWREHKDYLQJVXFKD significant impact on her mental and emotional well being. Rather, she tendered evidence which was, by her own admission, tentative and speculative. And while it was ultimately tied to specific months it was still lacking in any substantive particularity and afforded little confidence in its reliability [21]In short, I am unable to conclude that the employer breached its settlement obligations during what I have described as the non-documented period. [22]It does, however, appear that the employer was, to some extent, remiss in meeting its obligations during the documented period. The period comprises 27 weeks; 23 deliveries are recorded. [23]In virtually all weeks where delivery was HIIHFWHGDWWKHJULHYRU¶VKRPHWKDW occurred on the Monday. Where the delivery was effected at the courier depot, that occurred later in the week and, on two occasions, the following Monday. Of course, part of the delay, if it can properly be described as such, is a function of the grievor having been unavailable to accept delivery at her home and whatever subsequent time she may have taken to attend at the courier GHSRW(YHQDFFHSWLQJWKHJULHYRU¶VJHQHUDOL]HGQRQVSHFLILFDQGXQGRFXPHQWHGHYLGHQFHWKDW VKHZRXOGDWWHQGDWWKHFRXULHUGHSRW³SURPSWO\´I see no difficulties with respect to the manner or timing of delivery during or in reference to the weeks where delivery actually occurred. [24]I am less than certain that (again, in the absence of any sort of supporting GRFXPHQWDWLRQ WKHJULHYRU¶VPHUHDVVHUWLRQRIDQHYHQWZKLFKWRRNSODFHVRPHWZR\HDUVSULRU to her testimony (particularly where these deliveries are a weekly event) is sufficient to establish the claim that, on a single occasion, the grievor received information regarding only open (rather than open and closed) positions. Even if I were so persuaded, this variation would frankly need to be much more serious to even attain the status of de minimus. - 8 - [25]I am left with the discrepancy between the number of weeks (27) in the documented period and the number of documented deliveries (23) in those weeks. It appears that deliveries may not have been made in 4 weeks of the period. Two of those weeks appear to have occurred at the start of the period immediately following the Board order incorporating the SDUWLHV¶DJUHHPHQWWRFRXULHUGHOLYHU\7KHRWher two weeks were in December 2007, including the week between Christmas and New Years. The employer asserted (in its cross-examination of the grievor) and the grievor allowed such might well be the case, that there is a hiatus over the holiday period (although, I note, highlighting one of the other spots where counsel sparred over evidentiary onus, that no further formal proof of the assertion was provided). [26]It therefore appears that on at least 2 and at most 4 occasions, the employer failed to deliver the materials it was required to under the terms of the settlement. The evidence the grievor gave covered a period in excess of 2 years and would have given rise to well over a hundred individual courier deliveries, 2-4 of which appear to have not been fully effected. [27]I must therefore conclude that the employer was, indeed, in breach of its obligations under the terms of the SDUWLHV¶VHWWOHPHQWDQGWKLV%RDUG¶VDZDUG+RZHYHULIWKLV EUHDFK LQYLHZRIWKHHPSOR\HU¶VFRPSOLDQFHLQWKe vast majority of instances) is more than technical or de minimus, it is only barely so. [28]What then of the remedy? I have already declared the breach and, for the reasons that follow, I am satisfied that is a sufficient response to the employeU¶VGHUHOLFWLRQLQWKH circumstances of this case. [29]The employer asked that it be relieved of any future or ongoing obligation to provide the grievor with weekly courier delivery of the documents in question. [30]There are many bases the employer points to in support of its assertion that there is no labour relations purpose to be served by the fulfillment of the obligation of courier delivery. It is undisputed that the grievor is currently and, at least for the immediate future, unable to return to work. So long as that circumstance obtains, the employer argues, there is no practical purpose served by keeping her apprised of vacancies in positions to which she is unfit to return - 9 - to active duty. Further, even if there is some rationale/need for continuing to provide the information, there are much more efficient, reliable and inexpensive means of achieving that result short of requiring weekly courier deliveries. The employer warns that experience with this grievor demonstrates that maintenance of the current obligation will be little more than a roadmap to future litigation. [31]I have great sympathy for the concerns expressed by the employer. I, too, have great difficulty articulating a cogent labour relations purpose to be served by continuing to provide the grievor with courier delivery of documents which may provide her with negligible benefit and which may (treading here for a moment on another point of evidentiary contention between the parties), in any event, be readily available to her through other means. But, however elusive any objective labour relatiRQVUDWLRQDOHIRUWKHLQFOXVLRQRIWKHWHUPLQWKHSDUWLHV¶ settlement may be, the fact remains that it is clHDUO\WKHUH±LQGHHGLWZDs a specific result of the SDUWLHV¶H[SOLFLWDJUHHPHQWWRamend their original settlement. [32]It has never been the function of this Board to provide relief to grievors, unions or the employer from what time may have revealed to be an improvident settlement. Indeed, the sanctity of settlements is fundamental to the proper operation of the labour relations system. It is therefore not surprising that the employer was unable to provide any authority (from this Board or elsewhere) to support the intervention it asked this Board to make. Even if this Board has the authority to intervene and alter the terms of the SDUWLHV¶VHWWOHPHQWV DSRLQW,QHHGVD\QRWKLQJ more about) it would undoubtedly require the most extreme and egregious circumstances of the type this case does not make out. [33]However, while I am declining to granWWKHHPSOR\HU¶VUHTXHsted intervention, QHLWKHUDP,SHUVXDGHGWKDWWKHHPSOR\HU¶VYLRODWion of the terms of the settlement/Board Order warrants any remedy beyond a declaration. [34]The first and primary guiding principal of any remedial response is to put the aggrieved party, inasmuch as possible, in the same position they would have been in but for the breach. In the context of this case, it is simply not possible to rewrite history so as to retroactively provide the grievor with the documents in question. That task is beyond even this - 10 - %RDUG¶VDPSOHSDQRSO\RIUHPHGLDOresources. We must therefore ask what the grievor has lost, what she has suffered as a consequence of the HPSOR\HU¶VEUHDFK7KHanswer must be: very little. [35]First, it is clear that she suffered no FRQFUHWHHFRQRPLFORVV±QRQHZDVFODLPHG Similarly, while it may be appropriate, at least in theory, to suggest that she lost the opportunity to make use of the information that was not provided, that mere assertion with nothing more does not generate an entitlement to damages. Things might have been different had the grievor been able to identify a posted position that she was prevented from applying for (and, to some extent perhaps, even apart from any ultimate chances of success in the competition) because of the non- delivery of the materials. No such position was identified. [36]In terms of the actual impact on the grievor of the emSOR\HU¶VEUHDFK,DPOHIW with the claim advanced for the psychological impact and mental harm said to have been RFFDVLRQHGE\WKHHPSOR\HU¶VEUHDFK7KHJULHYRUWHstified that the settlement term was very LPSRUWDQWWRKHU±WKDWPD\WUXO\UHIOHFWKHUVXEMective sentiment, but it does not alter the fact that I remain at pains to articulate a rational and cogent labour relations purpose to be served by the requirement to furnish this information to the grievor on an ongoing basis, certainly so long as there is no prospect of her ability to return to work. Similarly, and in the absence of any medical or other evidence to support the claim EH\RQGWKHJULHYRU¶VEDOGassertion, and given the objective counter-intuitiveness of such a conclusion, I am not persuaded that she suffered significant psychological or emotional damage DVDUHVXOWRIWKHHPSOR\HU¶VPLQRUEUHDFK )UDQNO\WKHJULHYRU¶VFODLPWKDWbeing deprived of the materials on 2-4 occasions out of over 100 (and despite an inability to establish any other prejudice suffered as a result) caused her such distress that a payment of $70,000 in damages is required as compensation strains the limits of even the incredible. [37])LQDOO\,KDYHFRQVLGHUHGWKHXQLRQ¶VVubmission (perhaps its most meritorious one) that safeguarding the integrity of the settlement process necessitates a remedial response. Although no remedy was sought for the union (as opposed to the grievor), I believe this line of argument (particularly where no remediable harm to the grievor is occasioned by the breach) - 11 - DGGUHVVHVWKHXQLRQ¶VLQWHUHVWSHUKaps distinct from that of the grievor. However, I am of the view that any such remedial response is unwarranted and, at least, premature. [38]It was curious that both parties relied, for very different reasons, on the difficulties the initial and subsequent settlement have generated. The employer pointed to this to support its claim that any ongoing obligation will simply be a guarantee of future litigation. For its part, the union pointed to what it described as the emplR\HU¶VORQJVWDQGLQJDQGUHSHDWHG failures to comply as warranting a remedial response. While the parties may well have encountered difficulties in the implementation and administration of the terms of their settlement(s), until the instant proceedings, they have been able (sometimes with the aid of a consent Board order) to resolve those difficulties on their own and through agreement. The instant decision is the first time there has been any finding by this Board that the employer has breached the terms of the settlement. And when the precise nature of that breach is examined, it is only marginally more than a technical and de minimus breach. [39]What the future holds for these parties and the grievor is in their hands. They are, of course, free to negotiate further modifications to their agreements. In the absence of so doing, WKHHPSOR\HU¶VEHOLHIWKDWWKHJULHYRUZLOODOOHJHIXUWKHUEUHDFKHVDWWKHVOLJKWHVWSHUFHLYHG provocation may condition its care in complying with the terms of the settlement. And should further breaches be alleged by the grievor, the union will undoubtedly assess the nature of the interest requiring protection and whether it warrants the expenditure of scarce funds, time and resources. [40]The grievance is hereby allowed. I have declared that the employer has breached the terms of the settlement/Board Order. No other remedy will issue. rd Dated at Toronto this 23 day of February 2011. Bram Herlich, Vice-Chair