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HomeMy WebLinkAbout2001-0419.Burns.02-05-29 DecisionONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L’ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT RÈGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLÉPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TÉLÉCOPIE: (416) 326-1396 GSB# 0419/01 UNION# OLB439/00 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees’ Union (Burns) Grievor -and- The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Elizabeth Mitchell Counsel Koskie Minsky Barristers & Solicitors FOR THE EMPLOYER Alison Renton Counsel Liquor Control Board of Ontario Teleconference: May 21, 2002. 2 DECISION The union has alleged that the employer failed to comply with the terms of minutes of settlement entered into between the parties in resolving a grievance filed by the grievor, Mr. Gerald Burns. The background is as follows. A grievance dated October 20, 2000 filed by the grievor, in which he claimed that he was terminated without just cause, came before me on February 8, 2002. At the hearing, the parties agreed to a med-arb process. Following mediation, at the end of the day I understood that there was a tentative agreement, and that the parties will continue discussions on their own to finalise a settlement. Subsequently, the parties did execute minutes of settlement, as part of which they agreed that I shall remain seized with regard to implementation of the minutes. At the request of the parties, a hearing was held by conference call to deal with the present dispute. The minutes included the following terms. 2. The Grievor provided the Employer with a note from a physician on February 15, 2002, indicating the Grievor is capable of returning to work and performing the full duties of a Store Manager. 3. The Grievor shall be reinstated as a “C” Store manager the first full week following receipt of the medical note referenced in paragraph 2. The Employer shall provide the Grievor with one (1) month of retraining at a location to be determined by the Employer within the geo-posting area. If possible, that re-training will occur at the Lasalle 3 Store. Thereafter, the Grievor will be reinstated as the manager in the Lasalle Store. In para. 2 it is acknowledged that the grievor provided the medical note referred to in para. 2 on February 15, 2002. This fact is not disputed. It is also agreed that “the first full week following receipt of the medical note” under para. 3 commenced on February 25th, 2002. Therefore, under the terms of para. 3, the grievor ought to have been re-instated on February 25, 2002. However, he was re-instated only on March 18, 2002. Hence, the allegation of non-compliance. The employer cannot, and does not, deny that on any reasonable reading of the minutes, the grievor had to be reinstated effective February 25, 2002. However, it argued that it should not be held to the strict terms of the minutes, or alternatively that the union should be party held responsible for the delay in the reinstatement. It is pointed out by the employer that, while nothing was signed at the time, at the end of the day of mediation on February 8, 2002, the parties had reached agreement on terms of the grievor’s reinstatement, and also on the payment of a specific sum of money to the grievor for wages owing since his termination. Following the mediation day, however, the union raised an issue with regard to the grievor’s pension. At the union’s suggestion, in order to resolve the pension issue, the employer agreed to increase the amount previously agreed to as wages owed by two thousand dollars. It was following this that minutes were executed on or about March 7, 2002, after several drafts had been exchanged between the parties. 4 In light of this background, the employer submits that no minutes of settlement existed until March 7, 2002, well after the date of reinstatement agreed to in para. 3 of the minutes. In other words, on March 7th the employer undertook to reinstate the grievor on February 25th. According to the employer that is not an enforceable obligation. Alternatively, the employer submits that if para. 3 was enforceable, the union must bear part of the responsibility for the employer’s failure to comply. It is submitted that the union “changed its position” when it raised the pension issue and requested that the payment amount be increased. That delayed the execution of the minutes and the reinstatement. It is submitted that in the circumstances, the employer should not have to bear all of the consequences of the delay. The union denied that there was any change of position on its part. According to the union, following the mediation, three were still some outstanding issues, including the pension issue. The settlement was not yet complete. After going back and forth several times to resolve the pension issue, both parties saw it fit to get rid of it simply by increasing the amount of the lump sum payment. Neither party contemplated that by doing so, the date of reinstatement would change. Neither party sought to amend para. 3. The union submits that, the employer, having executed the minutes as it presently reads, cannot deny the obligations it thereby agreed to. 5 The evidence is that on February 22, 2002, the union wrote the following letter to the employer: Although we forwarded the grievor’s medical note to your attention on February 15, 2002, and provided you with proposed Minutes of Settlement on February 13, 2002, the LCBO has still not advised the Union, nor the grievor, of when or where he should return to work. Accordingly, the Union expects the LCBO to reinstate the grievor to the payroll effective February 25, 2002, while any remaining matters are worked out between the parties. There is no evidence that the employer responded to this letter by informing the union that it did not agree with the union’s expectation that the grievor will be reinstated on February 25, 2002, while any remaining matters are worked out. On the contrary, the evidence is that on or about March 7, 2002 the employer proceeded to execute the minutes with para. 3 unchanged. I agree that no binding minutes existed until execution on March 7, 2002. The union did not dispute this either. Therefore, my task is to ascertain, as best as possible, the intention of the parties with regard to reinstatement, at the time the minutes were executed. It is common ground that following the mediation on February 8, 2002, there was agreement that the grievor would be reinstated the first full week following receipt of a medical note indicating fitness. That was the mutual intent at that time. Did that 6 intention change subsequently? There is no evidence that it did. There was nothing inappropriate about the union raising the pension issue following the mediation because it was understood at the time that there were some outstanding issues to be resolved before a settlement can be finalized. If the union’s raising of the pension issue and/or demand for more money delayed the execution of the minutes, and if this delay rendered the previously agreed to reinstatement date no longer acceptable to the employer, it was open to the employer to seek a change of that date. The union in its letter of February 22, 2002, specifically drew the employer’s attention to the fact that as far as the union was concerned the agreed to reinstatement date still stood. Yet, the employer executed the minutes with that provision unchanged. Since no issue was raised about the appropriateness of the previously agreed to date, the only conclusion to be reached is the mutual agreement previously reached was not changed at the time of execution. Therefore, the employer must be held to the obligation it undertook. It is not uncommon for settlement documents to include provisions reinstating employees retroactively. Since the employer on March 7, 2002 signed minutes agreeing to reinstate the grievor on February 25, 2002, the employer must be taken to have agreed to a retroactive reinstatement. Accordingly, the employer is hereby directed to amend its records to indicate reinstatement of the grievor on February 25, 2002, and to compensate him for all losses 7 between that date and March 18, 2002 when he was actually reinstated. I remain seized with regard to any difficulties arising in implementing this decision. Dated at Toronto, this 29th day of May, 2002. Nimal V. Dissanayake, Vice-Chairperson