HomeMy WebLinkAbout2003-3512.Rolfe.06-09-13 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# 2003-3512, 2004-1489, 2004-1490, 2004-2196, 2005-3287
UNION# 2003-0542-0021, 2004-0542-0003, 2004-0542-0004, 2004-0542-0007, 2005-0542-0032
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Rolfe) Union
- and -
The Crown in Right of Ontario
(Ministry of Community and Social Services) Employer
BEFORE Felicity D. Briggs Vice-Chair
FOR THE UNION Ed Holmes
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER Felix Lau
Counsel
Ministry of Government Services
HEARING September 6, 2006.
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Decision
Ann Rolfe, a Client Services Associate in the Family Responsibility Office of the
Ministry filed seven grievances alleging various violations of the collective
agreement. Amongst other things, the grievor asserted that the Employer engaged
in harassment and fostered a poisoned work environment. In a recent decision this
Board determined that three of the seven grievances which dealt principally with
payroll deduction matters, were resolved between the parties.
During the course of the grievor’s evidence in chief, she began to testify about
events that occurred in 1996. In that year she filed two grievances which were
settled at a later date. Ms. Rolfe had just begun to give evidence about the facts
that brought about the filing of those grievances when the Employer objected. This
decision deals only with the issue admissibility of the evidence the grievor and the
Union attempted to proffer regarding those resolved grievances.
The parties agreed to put three documents into evidence for the purpose of this
objection. The first was a grievance filed by Ms. Rolfe on May 29, 1996 stating:
I grieve that the employer is in violation of article 4, 18.1, A.1.1, A1.2, and
A2 & 24 specifically but not exclusive to these articles, and that I was
denied a vacancy under articles 4.3.1 and 4.3.2.
She requested:
1. That I receive a written apology and verbal explanation of the unfair,
biased transition to my home position that caused a poisoned
environment. The abrupt termination of my secondment prevented my
career advancement to the complement OAG 8 position.
2. That I be confirmed into an OAG 8 position.
3. That I be given a transfer move within MAH into an OAG 8
permanent classified position.
4. That I receive retroactive pay with interest and merit increases from
November 28, 1994 to date.
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5. Consideration of the Memorandum of Agreement between the Crown
in Right of Ontario represented by MBS and OPSEU.
Earlier, on May 2, 1996, the grievor filed a grievance that stated the following:
I am improperly classified and grieve under Article 27.11, 27.11.3 and that I
also have been discriminated against and harassed so I grieve under Article
A.1.1,, A.1.2, A.2, 3.33, and Articles 5.2.1, 5.2.2, 5.4.1, 5.6 and unjustly
treated differently and discriminated against, in violation of, but not
exclusive to the above articles and including article 18.1
By way of remedy she wanted:
1. Classification to OAG 8 with retroactive pay to September 1995.
2. The harassment by the immediate supervisor to cease and desist and
the overt preferential treatment of other support staff to cease.
3. That I be immediately transferred to an AOG 8 position, from my
current poisoned work environment, where details of my personal file
will not be used against me.
4. That I be transferred to an OAG 8 position where I will not be
harassed or discriminated against by reason of my membership or
activity in OPSEU.
5. That the harassment caused by lack of clear communication and the
lack of provision of the necessary tools to carry out the expected tasks
of my position cease and desist.
6. That the harassment caused by the systemic degeneration of my
position with the negative impact on my attaining an appropriate “next
position” cease and desist.
7. Consideration of the Memorandum of Agreement between the Crown
in Right of Ontario represented by MBS and OPSEU.
The parties also entered the Memorandum of Settlement dated October 26, 1999
which resolved the above grievances. Their agreement stated:
1. The employer shall make available to the grievor, within as soon a
time as possible, an amount of $2,500 for OPS training opportunities,
such opportunities to be identified by the grievor and to be taken by
May 31, 2001. The employer’s consent to releasing the grievor from
her normal duties to attend the training within the OPS shall not be
unreasonably withheld, subject to operational requirements of her
current position. In the event that the grievor no longer works for the
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OPS prior to the full utilization of the training amounts, the employer
agrees to provide the grievor with the balance in cash.
2. The employer shall pay the grievor a lump sum training allowance of
$4,500. to be used by the grievor at her discretion for the purpose of
training outside of her working hours.
3. Nothing in this agreement prevents the grievor from asking her
employer to release her from her normal duties to attend training
outside the OPS, during working hours.
4. The employer shall provide to the grievor a letter of regret in the form
attached hereto as Appendix A.
5. The employer shall provide the grievor with the opportunity to
inspect her personnel file and remove any documents that pertain to
her employment with MMAH which, in the grievor’s view, she
considers to be negative.
6. The parties agree that Arbitrator Marszewski continues to be seized
with respect to the implementation of any issues arising from the
filing of the grievances in particular the implementation of the
Minutes of Settlement.
7. In consideration of the above, the grievor hereby releases and forever
discharges the union, the employer and the employer’s employees,
agents, office holders, etc. from all actions, causes of action claims,
and demands of every nature and kind arising out of or in relation to
the above mentioned grievances and employment with the employer,
including but not limited to all claims arising out of the Human
Rights Code, the Crown Employees Collective Bargaining Act and
the Ontario Labour Relations Act.
EMPLOYER SUBMISSIONS
The Employer objected to admissibility of this line of evidence because it flows
directly from the very fact situation that the 1999 Memorandum of Settlement
resolved. While previous decisions of this Board respect that latitude must be given
to enable a grievor to establish a pattern of behaviour, there appears to be a greater
overarching principle that the concept of a full and final settlement should not be
undermined. In this regard, parties are entitled to expect that when they have
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negotiated a resolution to outstanding differences they ought not to be obliged to
address the same fact situation in the future under some other guise.
Mr. Lau, for the Employer, also contended that to allow evidence such as this
would prolong the hearing substantially because the Employer would be obliged to
call witnesses to refute the grievor’s evidence. Moreover, the Employer would be
severely prejudiced by the significant passage of time since the events the grievor
wishes to testify about took place. While it was conceded that the passage of time
does not constitute an absolute bar to hearing such evidence, the age of the
evidence is one of the factors to be taken into account. There is a seven or eight
year gap between the evidence the Union seeks to call and the facts that give rise to
the grievances presently before this Board. Given that vast gap of time, the
probative value of the evidence would be minimal.
The Employer relied upon Re OPSEU (Dale et al) and The Crown in Right of
Ontario (Ministry of Health and Long Term Care) (2002) GSB 2000-1314
(Abramsky); RE OPSEU (Fletcher) and The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) (2006) GSB 2004-
0083 (Leighton); RE OPSEU (Waraich) and The Crown in Right of Ontario
(Ministry of Labour) (2004) GSB 2003-0187 (Watters): and Re Hotel Dieu
Grace Hospital and ONA (1996), 62 L.A.C. (4th) 64 (M. Picher).
UNION SUBMISSIONS
Mr. Holmes, for the Union, submitted that the Union is asking that this evidence be
admitted for the sole purpose of establishing a pattern of behaviour. It is the
grievor’s assertion that this Employer and its agents have discriminated against her
in the past regarding her work assignment and the fact situations that brought about
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the filing of the instant grievances are further examples of that offensive behaviour.
The allegations in 1996 were discrimination and harassment and this is the same
type of Employer behaviour is at issue now. To be clear, neither the grievor nor the
Union would be seeking a finding or request a remedy as a result of what occurred
in 1996. The grievor merely wants to be allowed to give fulsome evidence
regarding how she has been treated by this Employer during the course of her
employment and that evidence is the factual underpinning of the matters at hand.
The Union contended that the evidence at issue is relevant, probative and necessary
for establishing a context for the instant grievances.
Further, it was the Union’s position that to disallow evidence such as this will
serve as a disincentive to individuals and to the Union to resolve grievances that
assert discriminatory or harassing treatment because of fears that in the event the
offending behaviour does not cease the door would be shut on that evidence and
there would be no opportunity to rely upon past ill behaviour.
It was Union’s view that the passage of time cannot be sufficient reason to
disallow the evidence. It was suggested that the testimony should be heard and
allow the parties to argue what weight, if any, ought to be given this evidence.
However, when pressed it was conceded that, in circumstances such as these the
grievor might have a more vivid recall of the facts. Further, because the
Employer’s evidence might be somewhat vague, if a simple weighing of the
evidence was undertaken on the basis of the clarity of the evidence, the Employer
might be prejudiced.
The Union asked this Board to find exceptional circumstances in this matter and
allow the evidence to be heard. Once a balancing of interests in undertaken it will
be obvious that the grievor’s evidence should be allowed.
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The Union relied upon Re OPSEU (Richard) & The Crown in Right of Ontario
(Ontario Clean Water Agency) (2005) GSB 2000-1220 (Abramsky); Re Retail,
Commercial & Industrial Union Local 206 Chartered by United Food &
Commercial Workers International Union v. Comstock Funeral Home [1981]
O.L.R.B. Rep Dec 1755 (Mitchnick); and Re Upholsterers’ International Union
of North America A.F.L. – C.I.O. v. Craftline Industries Limited [1977]
O.L.R.B. Rep. April 246 (Burkett).
In reply Mr. Lau took issue with the Union’s assertion that it does not seek a
finding regarding the Employer’s behaviour in 1996. It was submitted that in order
to make a finding of a pattern of ill behaviour there would have to be, necessarily,
a finding of inappropriate conduct in 1996. That is to say that in order to make a
finding of a pattern of behaviour an adverse finding on the behaviour from 1996
cannot be avoided. Finally, the Union’s concerns regarding any disincentive to
settling matters such as these can be easily redressed by the terms of any particular
settlement. If there are concerns about future conduct it can be specifically taken
into account in Minutes of Settlement.
DECISION
There appeared to be some dispute between the parties about whether the people
involved in the 1996 grievances were the same as in the instant matter. After a
discussion with counsel regarding this matter I am of the view that any
disagreement between the parties, if indeed any exists, is of little import for the
purposes of this decision.
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I have set out only a brief summary of the submissions of the parties. Both counsel
provided full and thorough arguments along with the relevant case law. I have not
set these out in further detail because of the short period between hearing days.
Given that the grievor is in the middle of her evidence in chief, the parties need to
be apprised of my ruling. It is for this reason that my ruling will also be somewhat
truncated.
The parties were not significantly apart regarding the overarching principles that
are at play in matters such as this. However, they were disparate about how these
principles apply in the instant matter. Each party was of the view that a balancing
of interests would bring a finding in its favour.
After consideration I am of the view that I cannot allow the evidence which the
grievor and the Union seek to admit. This Board has repeatedly acknowledged and
upheld the sanctity of settlements between the parties. To do otherwise could do
great labour relations harm. Each party must be able to rely upon the word of the
other party that the matter being resolved is over, that it will not be raised or
referred to in the future, either directly or indirectly. If closure of outstanding
matters is not respected, there would be little incentive indeed to enter into
settlement agreements.
The Union suggested that to uphold the Employer’s objection will bring about a
disincentive for grievors to settle matters involving allegations of harassment or a
poisoned work environment. While I appreciate that this argument has some
superficial attraction, I cannot agree. Indeed, I must concur with the Employer’s
view that any significant concern in this regard can be taken into account in the
wording of any Memorandum of Agreement. As stated above, I am of the view
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that without the certainty that resolved matters will become a “sealed history”, if
you will, there would be little or no incentive by either party to settle disputes.
In my view, the expectations of the parties were clearly stated in this matter at
paragraph seven of the Minutes of Settlement. In consideration for paragraphs one
through six, the “grievor hereby releases and forever discharges the union, the
employer and the employer’s employees, agents, office holders, etc. from all
actions, causes of action claims, and demands of every nature and kind arising out
of or in relation to the above mentioned grievances….” While I appreciate that the
wording a Memorandum is not determinative in matters such as these, they are one
of the factors to take into account when assessing whether to allow this evidence.
Vice Chair Abramsky undertook a thorough review of the jurisprudence in Re
Dale et al. For that reason and because of the present time constraints regarding
this issuance of this decision, it is not necessary for me to undertake another
written analysis of the case law. However, it should be noted that Vice Chair
Abramsky’s rationale for rejecting the result in Re Comstock and mine are
different. I accept that there may be some instances, such as that before Vice Chair
Mitchnick at the Ontario Labour Relations Board when the facts behind a
settlement should be allowed into evidence, albeit for a limited purpose. However,
in this case, the alleged breaches of the collective agreement over which I presently
have jurisdiction occurred many years after the 1996 grievances were filed. This is
not akin to the situation before Vice Chair Mitchnick wherein he found that
employers could not resolve matters and then because of the cloak of a settlement
act with “relative impunity” toward the grievor “within days of the preceding
settlement.”
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This is not an instance, as suggested by the Union, where it would be appropriate
to admit the evidence and allow the parties to argue what weight, if any, it should
be given. Consideration of the admissibility of evidence turns on the facts of the
matter at hand, Having taken into account the prejudice the Employer might face
and for the reasons stated above, I am of the view that there are no exceptional
circumstances in this case that would allow me to hear the evidence regarding facts
that were addressed by the Minutes of Settlement in 1999.
Dated in Toronto, this 13th day of September, 2006.
Felicity D. Briggs
Vice-Chair