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HomeMy WebLinkAbout2010-2912.Malik.12-05-23 Decision Crown Employees rieva nce Settlement oard 1Z8 l. (416) 326-1388 x (416) 326-1396 t des griefs es employés de la t Z8 l. : (416) 326-1388 léc. : (416) 326-1396 UNION#2010-0546-0026 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ETWEEN G B Suite 600 180 Dundas St. West Toronto, Ontario M5G Te Commission de règlemen d Couronne Bureau 600 180, rue Dundas Oues Toronto (Ontario) M5G 1 Té Té Fa GSB#2010-2912 B Ontario Public Sployees Union (Malik) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer ervice Em BEFORE Bram Herlich Vice-Chair FOR THE UNION unco FOR THE EMPLOYER Eric del J Counsel t Services vices Branch Cathy Phan Ministry of Governmen Legal Ser Counsel HEARING April 17, 2012 Decision [1] The grievor in this case asserts that the employer’s decisions to screen him out of consideration in respect of two related job competitions (each in respect of a position outside the bargaining unit) amount to prohibited harassment and discrimination and further (or perhaps in the alternative) constitute a violation of the terms of the settlement of two previous grievances. [2] The union wishes to call and rely upon evidence of the facts and circumstances that gave rise to the now settled grievances. It is clear in the specific and limited use it advocates for such evidence. It is not seeking any remedy in respect of the events that gave rise to the prior grievances. However, it does wish to point to those events in order to establish what it claims is an ongoing pattern of improper conduct on the part of the employer. [3] The employer objected to the introduction of any evidence relating to the facts and circumstances of prior settled grievances. [4] The parties agreed that I should rule on the employer’s objection prior to hearing any evidence and made their submissions in respect of the objection. [5] For the purposes of this ruling there appeared to be few, if any, contested facts between the parties. The ruling that follows is based upon facts as asserted by counsel. These facts are adverted to solely for the purposes of this ruling and should not be seen as necessarily restricting the ability of either party to call further relevant admissible evidence. [6] In April 2009, the grievor filed a grievance alleging that he was being harassed by his manager (the written grievance included no explicit claim of discrimination and no details to identify any specific alleged incident of harassment). In August 2009 another grievance was filed alleging that the grievor had been unfairly assigned to the Employment Enforcement Unit without consideration of his seniority. It further alleged that the grievor’s manager was continuing to harass him (again, there was no explicit - 2 - claim of discrimination and no details to identify any specific alleged incident of harassment). [7] The two grievances were referred to this Board and on May 19, 2010, the parties and the grievor executed a Memorandum of Settlement (“MOS”) in respect of the two grievances. The portions of that MOS that are particularly relevant for our purposes are the following: 3. The Employer agrees to support any career aspirations as agreed by the Grievor’s Manager and reflected in any future learning and development plans. *** 7. The Grievor hereby releases and forever discharges the Crown in Right of Ontario and the Employer, its servants, agents and directors of and from all actions, causes of action, grievances, claims and the demands of every nature and kind arising out of, as a result of the grievance and the circumstances giving rise to the grievance, including but not limited to all claims under the Employer’s Workplace Discrimination and Harassment Policy, the Ontario Human Rights Code, the Occupational Health and Safety Act, the Public Service of Ontario Act, the Employment Standards Act and the common law. 8. Nothing in this settlement constitutes an admission of liability by any party. 9. The Parties agree that this settlement constitutes the entire agreement between the Parties and supersedes any and all prior oral or written agreement, arrangements or understandings between them. *** 11. The Grievor and Union agree that the above-noted grievances are hereby fully and finally resolved and withdrawn. [8] At the time this MOS was entered into, the grievor had already applied for one of the positions that are the subject of the fresh grievance now before me. Indeed, he had already met with his Director and expressed concern about any possible reprisals. - 3 - [9] Initially, the grievor was screened out of the competition (i.e. not interviewed). However, it appears that this competition was cancelled by the employer and two individuals were assigned to the positions in question on a temporary basis. In or about December 2010 the employer reposted the position. The grievor was again screened out of the competition and, as a result, filed the instant grievance. (It will be recalled that the position in question was both temporary and outside the bargaining unit.) [10] The union claims that the employer’s recent treatment of the grievor is but a continuation of a pattern of discrimination and harassment that can be seen in the facts giving rise to the now settled grievances. [11] The union also claims that the employer’s conduct is in breach of the “spirit and the letter” of the MOS, particularly paragraph 3 thereof. However, it is important to note that it does not assert that the MOS is no longer binding and that the facts giving rise to the prior grievances, indeed the grievances themselves, now need to be litigated. Rather it seeks the enforcement of the MOS. However, in support of its claims of improper employer motive in the fresh grievance, it wishes, essentially, to point to other manifestations of that impugned motive. [12] For the reasons that follow, I am not persuaded that I ought to permit the union to so dramatically enlarge the evidentiary territory in these proceedings. [13] This Board has taken a consistent view regarding the importance and the sanctity of settlements. Settlement of grievances is a critical piece of the very foundation of any labour relations structure. Parties must be able to confidently rely on the integrity of their settlements. Where parties have agreed to a resolution and have, as they most often do, agreed that the resolution is without any admissions of liability, it is curious, to say the least, for one of them to then proceed to ask an adjudicator to make findings of liability. That curiosity is among the many reasons why this Board (and, indeed, any labour arbitrator, labour tribunal, or any adjudicative body) will be most reluctant to ever go behind the terms of a settlement, save perhaps in the most exceptional of cases. - 4 - [14] On the other hand, neither is this Board blind to the fact that certain claims, such as prohibited discrimination, may be extremely difficult to advance and harder yet to prove without a more sophisticated understanding of the workplace mechanics and operation of discriminatory conduct. [15] One of the more recent cases to address and re-confirm this Board’s approach to the importance of settlements is one that (not unlike the instant case) had to consider both of the preceding themes. [16] In Re Brown 2011/0853 etc. (Dissanayake), the Board relied upon and cited the decision in Re Hawkes 2007/2388 etc. (Leighton) at paragraphs 11 and 12: The issue before me is whether evidence of events in 2005 that were the subject matter of grievances, settled by MOS in early 2006, should be admitted in the current proceedings. The union seeks to adduce the evidence to show a pattern of harassment and provide the context for the current grievances. The union acknowledges the principle of the sanctity of settlements – that parties must be able to rely on the agreement and the matter will not return in another forum or guise. However, the union argues that I should make an exception here because the employer has acted in bad faith by continuing a WDHP complaint. The board has addressed this issue consistently over the years, recognizing the importance of enforcing settlements between the parties. The board has discretion as to what evidence it admits, but it has said that it will not admit evidence of the settled matter unless there are special circumstances. As Vice-Chair Abramsky stated in her thorough review of the board's case law on the issue in Dale [2000/0783], “once the matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise”. [17] There is, however, a line of authority pointed to by the union where an adjudicative tribunal has permitted a party to adduce evidence relating to settled matters. It emerges from the Ontario Labour Relations Board and has its jurisprudential centre in the decision of that Board in Comstock Funeral Home Ltd., [1981] OLRB Rep. December 1755. - 5 - [18] In that case, following on the heels of a successful organizing campaign in a small workplace, the employer committed a number of what the union asserted were unfair labour practices. The resulting complaints were settled. However, while the ink on the settlement documents was barely dry, the employer took further steps (including job security related rewards and punishments for perceived union opponents and supporters, respectively). The union filed a fresh unfair labour practice complaint. At the hearing in that complaint the union sought and was permitted to adduce evidence relating to the settled complaints. It did so not to seek any remedy in respect of those events, but merely for the purpose of establishing an asserted pattern of anti-union animus. [19] I need not enumerate the particulars of those complaints except to repeat that they related to issues of job security. The periods immediately preceding and following union organizing campaigns are well known to be ones that can seriously test the viability of any nascent bargaining relationship and it is less than surprising that the OLRB’s jurisprudence is replete with cases arising during those periods. It is therefore hardly surprising that the OLRB would have viewed that employer’s conduct as particularly egregious (settling one set of complaints while undoubtedly deliberately planning the conduct which would lead to the next) and would therefore permit the union to adduce the evidence in question for the specific identified purpose. Indeed, as the OLRB put it: …having avoided the time, expense and risks of litigation by the settling of a complaint, a party must recognize the possibility that future conduct of a controversial kind can force it to litigate its entire pattern of conduct to that point. This is especially so when its subsequent conduct is as predictably inflammatory as in the present case, and occurs within days of the preceding settlement. [20] It is in respect of that type of extreme fact scenario that this Board has preserved, though never used, its ability to permit a party to adduce evidence pertaining to settled matters. I am not persuaded, however, that the facts or alleged facts of the instant case rise to anywhere near the level of “special circumstances” the Board has indicated are required to permit evidence of the events giving rise to prior settled grievances to be admitted. The flagrant and provocative nature of the employer’s conduct in a particularly vulnerable - 6 - labour relations period in the Comstock case simply finds no match in the instant tale(s) of alleged improprieties in relation to the filling of temporary jobs outside the bargaining unit. [21] In coming to this conclusion, I am mindful, as this Board has historically been, of the practical difficulties that may be associated with the successful prosecution of legitimate harassment and discrimination grievances. Indeed, even in the Brown case, the Board permitted the grievor to adduce evidence of events which may have pre-dated the filing of the grievance by as much as three years. The “rule of thumb” the Board has extended to evidence that, in other contexts, would, in all likelihood, be considered untimely is an adjustment this Board has consistently applied in these types of cases. [22] However, even in Brown, that exception to the usual approach to admissibility is not one the Board saw fit to extend to evidence of the facts giving rise to previously settled grievances. Nor do I find it appropriate to do so in the present case. [23] The union will, of course, be permitted to rely on and point to the terms of the previous settlement as well as the grievance documents that gave rise to it (these have already been marked as exhibits). The Board is not persuaded, however, that there are any special circumstances in the instant case that would permit or warrant the litigation of grievances that have already been settled. That, even though the union seeks no remedy in respect of those facts, would be the effective result of the union’s request. The entire factual matrices of resolved grievances would have to become part of the evidentiary terrain to be traversed. There is sufficient ground to cover in the grievance before me. I see no need or utility in adding the facts and subject matter of settled grievances. [24] The employer’s objection to the introduction of evidence pertaining to the facts giving rise to the settled grievances is upheld. - 7 - Dated at Toronto this 23rd day of May 2012. Bram Herlich, Vice-Chair