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HomeMy WebLinkAbout2010-2686.Kent.12-08-03 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-2686, 2011-0713 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Kent) Association - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Marisa Pollock Sack Goldblatt Mitchell LLP Barristers and Solicitors FOR THE EMPLOYER Omar Shahab Ministry of Government Services Labour Practice Group Counsel HEARING July 18, 2012. - 2 - Decision [1] The Board is seized with a dispute filed by Mr. Donald Kent (“complainant”) wherein he claims that the employer’s decision to terminate his employment effective November 4, 2010 was in contravention of the collective agreement and the Ontario Human Rights Code. [2] The dispute came before me for mediation-arbitration on January 5, 2012. Through mediation a number of terms were agreed upon between the parties, including the payment of certain agreed to amounts of money to the complainant and the substitution of a letter of resignation in place of the letter of termination. However, there was a major stumbling block that prevented settlement of the dispute. The employer insisted that the settlement must include a provision to the effect that the complainant would not apply for employment with the Ministry (“the no application clause”). The complainant and the Association were equally adamant that such a term was not acceptable. The mediation extended into the evening with neither party moving from their respective positions on the one outstanding issue. At the end of the day, the Association undertook to provide to the employer a written draft of proposed Minutes of Settlement. [3] Accordingly on January 9, 2012 the complainant sent to employer counsel correspondence to the effect “I have attached the latest proposal as requested”. Attached to it was a Memorandum of Settlement signed by the complainant. It included all of the terms verbally agreed upon at the mediation. It did not include the “no application clause” the employer had insisted upon. Employer counsel undertook to seek instructions and after some communications by e-mail back and forth, on January 13th employer counsel wrote to Association counsel to the effect “the ministry has informed me that they won’t agree to the settlement. I have been instructed to go forward with the litigation. The Ministry will begin its case on February 24”. [4] Association counsel in turn made inquiry as to “what the difficulty is with the proposal”. When there was no immediate response, she followed up seeking information as to what - 3 - parts of the proposed settlement are unacceptable to the employer. Ultimately on February 14, 2012, employer counsel wrote to Association counsel inter alia, as follows: After considerable deliberation, the Ministry is adamant that it no longer wants to settle the Kent case. I have been told to proceed with the litigation. I will continue to explore whether there is chance of this position changing, and will let you know right away of any new developments. At this point though, I am assuming that the Employer will need to start its case on February 24. [5] Association counsel gave notice to the employer on February 23, 2012 as follows: AMAPCEO will be taking the position that the parties concluded a settlement. After many hours of mediation, the bulk of the provisions of the agreement were unambiguously agreed upon by the parties. AMAPCEO’s position is that those provisions should be enforced. [6] At the hearing on February 24th, the parties agreed that another grievance filed by the grievor should be dealt together with the instant grievance. Opening statements were made, following which the Board was advised that on the next hearing date the Board would be asked to deal with a motion by the Association. [7] At the hearing on July 18, 2012 the Association moved that the Board should declare that the dispute had been settled on the basis of the terms agreed upon at mediation and incorporated in its proposed written Minutes of Settlement, but also including the “no application clause”, which the employer had been demanding. In other words, the association had at this point backed off from its position that it would not accept a “no application clause”. [8] Counsel for the Association submitted that when the employer rejected its proposal, the Association’s response was to inquire as to why the employer found the proposal unacceptable. Had the employer indicated that it still would not accept a settlement without a “no application clause”, the Association would have given serious consideration as to whether it would change its position and agree to such a clause. Rather, than responding to its inquiry, the employer took the position that it no longer was prepared to settle the grievance and that it wished to proceed with litigation. Counsel referred me to the following portion of article 15.1 of the collective agreement: - 4 - “The parties further acknowledge the importance of full disclosure of issues and open discussion throughout the process to facilitate mutually acceptable resolutions”. [9] Counsel urged the Board to follow an approach that would uphold the integrity of the settlement process and would promote settlements. She referred to authorities that recognize the sanctity of settlements, and submitted that unless there are compelling reasons not to do so, the Board should err on the side of finding and upholding a settlement reached. She urged the Board not to allow a party to say that it no longer wishes to settle, when in reality there was a settlement. I was referred to the following authorities. Re Architectural Mouldings Ltd., unreported decision dated May 18, 2005 (Newman); Re Sudbury District Roman Catholic Separate School Board; (1997) 61 L.A.C. (4th ) 223 (Kaplan); Re Ontario Racing Commission, (2001) 104 L.A.C. (4th ) 166 (Knopf). Counsel suggested that what appears to have happened is that someone higher up in management who was not involved in the mediation decided to negate the many hours of hard work the parties had put in, by deciding that the dispute should proceed to arbitration. This, argued counsel, goes against the generally accepted principle in labour relations, that settlement is to be preferred over litigation. [10] The employer’s primary position was that despite protracted mediation on January 5, 2012 no settlement was concluded that day or any time thereafter. The only offer to settle the employer made at mediation included the “no application clause”. The Association rejected that offer and made a counter-offer without that clause. The employer rejected that counter-offer, and decided to discontinue settlement efforts. Counsel submitted that no settlement could have come into existence because there was a disagreement on a fundamental issue. The employer took the position that the inclusion of a “no application clause” was very important to it. For the Association it was equally important that such a clause is not part of any settlement. Counsel submitted that when the Association rejected the employer’s offer and made a counter- offer, the employer offer was nullified and did not exist anymore. At that point the only offer on the table was the association’s counter-offer, which was not accepted by the employer. - 5 - [11] In the alternative, counsel submitted that even if the Board decides that the employer’s offer which included the “no application clause” survived despite its rejection and the counter-offer made by the Association, on February 14th the employer very clearly withdrew its offer before it had been accepted. After February 14th that offer was no longer available to be accepted by the Association. The employer referred me to the following cases: Re Ferano Construction Limited, (1989) OLRB Reports, May 446; Re Stelwire Ltd., (1997) O.L.A.A. No. 149 (Carrier); Re Globerman, GSB 0901/01 (Briggs); Re Purewood Inc. (2008) O.L.A.A. No. 123 (O’Neil). [12] Both parties agreed that the disposition of this motion depends on whether on the evidence the Board concludes that there was a settlement. The Board agrees. Whether a settlement, whether oral or reduced to writing, exists is a matter of fact to be determined on the basis of the evidence. For the labour relations policy considerations referred to by the Association to come into play, there must first be a settlement between the parties. The policies and principles may promote settlements and treat settlements reached as sacred. However, it is the parties that must achieve a settlement. The Board has no authority to impose one. [13] On the basis of the undisputed evidence before me, there clearly was no settlement reached between the parties. Negotiation of a settlement involves a process of “give and take”. A party may be willing to agree to one or more of the other party’s demands, provided the other party agrees to its demands in one or more other areas. This is exactly what occurred here. The employer’s offer to agree to various terms was clearly conditional upon the Association agreeing to a “no application clause”. The Association would not accept such a clause. Instead, it proposed a counter-offer excluding such a clause, which was rejected by the employer. Thus there clearly was no consensus ad idem on the terms of a settlement. The Association agreed that it did not agree to accept a “no application clause” at any time before the employer’s communication on February 14, 2012, advising that it did not any longer wish to settle the dispute. Thus, the Board finds that after that communication on February 14th, there was no offer from the employer available to be accepted by the Association. Moreover, even in its response to the employer’s e-mail of February 14th, the Association did not indicate that it was - 6 - changing its position and was willing to accept a “no application clause”. In its communication set out above at para.5, it refers to agreement on “the bulk of the provisions”, but gives no indication that it was changing its position that it would not accept a “no application clause”. There is no evidence that the Association communicated its acceptance of such a clause except in the course of making the instant motion. To the contrary, its position was that those terms agreed upon ought to be enforced. [14] The Board reiterates that all of the general principles and policies the Association relied on, is premised on a finding that the parties had reached a settlement. That was the finding in the authorities relied on by the Association. Indeed, as the Association’s submissions set out at para. 8 (supra) indicate, the instant motion was premised on its position that a settlement of the dispute had been reached. However, the evidence is that while the bulk of the terms of a settlement had been reached, the dispute itself was not resolved because of the parties’ disagreement on the “no application” clause. Unfortunately, by the time the Association decided to accept that clause, the offer had been revoked. The Association’s motion, therefore, is denied. The Board remains seized with the dispute. Dated at Toronto this 3rd day of August 2012. Nimal Dissanayake, Vice-Chair