HomeMy WebLinkAbout1992-1164.Harrison et al.99-10-21 DecisionONTARIO EMPLOYÉS DE LA COURONNE
CROWN EMPLOYEESDE L’ONTARIO
GRIEVANCECOMMISSION DE
SETTLEMENTRÈGLEMENT
BOARDDES GRIEFS
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GSB # 1164/92
OPSEU # 92E589-592
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Harrison et al)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General and Correctional Services)
Employer
BEFOREPaula KnopfVice Chair
FOR THE Alick Ryder
GRIEVOR Counsel, Ryder, Wright, Blair & Doyle
Barristers & Solicitors
FOR THEDennis Bolton
EMPLOYER Staff Relations Officer
Ministry of the Solicitor General and Correctional Services
HEARINGSeptember 29, 1999
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A W A R D
On August 6, 1998 the parties signed a Memorandum of Settlement
(the “Settlement”) covering several outstanding grievances and claims. The Union
alleges that the Employer failed to abide by the Settlement. This hearing was
convened in order to inquire into and determine the issues of implementation and
remedy. Essentially, the Union is alleging that the terms of the Settlement have not
been honoured and that the grievor is entitled to either specific performance and
damages or a declaration terminating the Settlement on the grounds of fundamental
breach.
The terms of the Memorandum of Settlement are as follows:
The Union, the Employer, and the Grievor (together, “the
Parties”) agree to the following terms and conditions as a full, complete
and final settlement of ANY and ALL the Grievor’s outstanding
grievances, complaints, appeals, and any claims whatsoever against
the Employer; including but not limited to issues raised by the by the
Grievor pursuant to the Workplace Discrimination and Harassment
Prevention (WDHP) directive and its operating policy. [sic]
1. These Minutes of Settlement are without prejudice or
precedent to any other matter that may arise as
between the parties, save and except as applies to the
enforceability of the terms herein;
2.The Parties agree that the Grievor’s unclassified
contract will not be renewed beyond August 31, 1998.
3.The Employer will pay to the grievor the sum of Twelve thousand
five hundred dollars ($12,500.00) less statutory deductions to be
paid within sixty (60) days of the signing of this Minutes of
Settlement.
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3(a)The Employer agrees to pay the grievor the sum of
$16,780.00 in gross monies within 60 days of the
signing of the settlement.
4. The Union and the Grievor agree to withdraw all
outstanding grievances, appeals, complaints under
the WDHP directive and operating policy, claims,
and civil proceedings against the Employer and
further agree that the monies paid pursuant to
paragraph three (3) herein, includes any amounts
that the Grievor may be able to claim pursuant to
any rights and/or entitlements set out in the
collective agreement and/or any other legislation.
5. The Grievor specifically agrees that other than
enforcement of the terms herein, she has no further
claim or claims against the Employer and the
employment relationship between the grievor and
the Ministry is hereby severed.
6. The parties agree to keep the terms of these
Minutes of Settlement confidential and only reveal
the terms where required by law.
7. The Employer agrees to issue to the grievor a letter
of employment by August 31, 1998. All requests
for information regarding the grievor’s employment
will be dealt with solely by the content of the letter.
9. The employer agrees to provide a record of
employment regarding Ms. Harrison’s lay-off within
the time frame required by law.
It is helpful to put the circumstances leading up to the Settlement
in some context. The grievor was an unclassified employee, working as a
corrections officer at the Whitby Jail. An incident in 1991 involving firearms and
inmates resulted in the grievor developing post traumatic stress syndrome. This
was not recognized until 1995. Except for a few days in 1997, she was
essentially off work from the period of July 1995 through to August 1998. By
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1998, her employment relationship was characterized by a large number of
grievances and complaints. She was under a doctor’s care and it had been
recommended to her that a resolution of the grievances would be necessary to
help her recover from her condition. The grievor testified that she entered into
the Settlement on August 6, 1998 with the hope of resolving all the outstanding
matters and improving her condition. She further testified that she experienced
marked improvements in her medical situation in the weeks following the signing
of the Settlement.
Consequently, on August 28, 1998, the grievor attended at her
former place of employment to pick up the documentation and cheque that had
been prepared pursuant to the Settlement. However, the grievor’s testified that
she immediately noticed that the documents did not comply with the terms of the
Settlement in three areas.
First, the grievor was very upset to see that the cheque that had
been issued to her pursuant to paragraph 3 of the Memorandum was in the
amount of $9,266.81. The grievor had expected a cheque in the amount of
$10,500.00. She explained that paragraph 3 of the Memorandum had been
negotiated with the intention of netting her the sum of $10,500.00. She testified
that the Employer had originally offered the gross sum of $10,000.00 and that
negotiations had progressed with the Union making it clear to the Employer that
the grievor wanted to be able to net the sum of $10,500.00. Accordingly, the
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sum of $12,500.00 was agreed upon on the basis of the grievor’s understanding
that the statutory deductions would leave her with a total of approximately
$10,500.00. Accordingly, her position is that the cheque issued to her by the
Employer for $9,366.81 does not satisfy the intent of paragraph 3 of the
Memorandum.
Secondly, the grievor testified that the letter delivered to her on August 28
pursuant to paragraph 7 of the Memorandum was inappropriate in that it was
addressed to her as Ms. Catherine Harrison. The grievor explained that she was
christened with the name Cathy and that Catherine is not her legal name. She
perceived the mistake with her name to be “continued harassment” because
even after eight years of employment the Employer had not paid respect to her
legal name.
Finally, the grievor alleges that the Record of Employment issued
to her does not comply with the Settlement. The Record of Employment is
issued to allow her to claim Employment Insurance benefits. The grievor
explained that the intent and spirit of the Memorandum of Settlement was to
enable her to make a claim for Employment Insurance and thus take financial
pressure off the Employer for compensating her for loss wages. Accordingly, the
grievor’s understanding from the negotiated settlement was that the Employer
would issue a Record of Employment that would allow her to make a claim for
maximum benefits under Employment Insurance. However, when the grievor
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saw that the Employer had listed her last date of work as being in 1995 and
attributed no employment income in the year 1998, the grievor realized that she
would not be able to succeed in an Employment Insurance claim. Accordingly,
the Union and the grievor allege that the Record of Employment issued by the
Employer fails to satisfy the requirements of paragraph 9 of the Memorandum.
Further evidence shows that there is a letter dated August 31,
1998 directed to “Ms. Cathy Harrison” which confirms that she was employed by
the Ministry as an unclassified Correctional Officer at the Whitby Jail from June 4,
1991 until August 31, 1998. The grievor takes no objection to the contents of this
letter. However, it is the position of the grievor and the Union that this letter was
never received by her. The Employer’s position is that the letter was sent out to
her on August 31, 1998.
Further, the evidence of the Employer is that the statutory
deductions made to the gross amount of $12,500.00 yielded the sum of
$9,266.81. The Union does not dispute that the deductions are all related to
appropriate statutory deductions. Finally, the Employer’s position is that the
Record of Employment was completed with the advice and assistance of the staff
at the Employment Insurance office. The Employer takes the position that the
Record fits the requirements of law and was completed with the sole intent of
fulfilling the Settlement.
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The grievor gave very dramatic evidence about how deeply she
has suffered as a result of what she perceives to be the failure of her former
employer to honour the Memorandum of Settlement. Again, she outlined how
she had entered into the settlement in the hope of improving her condition.
However, she suffered immense disappointment at the documentation and the
amount of money she received on August 28. Since then, she has suffered
terrible frustration as a result of having to reconvene the hearing in order to
resolve these issues. She summed up her frustration and her pain with the
words: “I haven’t done anything wrong. I just want this over with.” She
explained that even if the Record of Employment was amended, she will still
have to pursue a claim with Employment Insurance that has no guarantee of
success. Accordingly, it is her wish that the Settlement be set aside and that she
be allowed to start over again and pursue all her grievances against the
Employer.
The Submissions of the Parties
Counsel for the Union began by setting out the jurisdiction
available to this Vice-Chair. Under Section 48(15) Labour Relations Act, an
arbitrator has the express power to enforce a settlement. Under Section 7 of the
Crown Employees Collective Bargaining Act, a Vice-Chair of the Grievance
Settlement Board has all the jurisdiction available under Section 48(15).
Accordingly, it was said that these proceedings allow me not only to enforce the
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Settlement, but also to declare a repudiation of that Settlement. It was argued
that the Settlement should be treated in the same way as any other breach of
contract in which the remedial authority is two-fold. There can be the option of
specific performance and damages. Alternatively, if it is found that there has
been a fundamental breach of the settlement or contract, this tribunal has the
option of declaring that it ought to be terminated. It was argued that the test of
whether there has been a fundamental breach is to ask whether damages will
restore the grievor to the position she would have been in, but for the breach.
Reliance was put on the case of Ontex Resources Ltd. v. Metalore Resources
Ltd. (1993), 103 D.L.R. (4th) 156 (Ont. C.A.) at page 176. It was conceded that
damages could repair the alleged breach of paragraph 3 of the Memorandum if
the Employer were simply ordered to pay to the grievor the amount that will yield
her a net of $10,500.00. However, it was alleged that paragraphs 7 and 9
cannot be so easily remedied. It was submitted that damages cannot be
quantified for the breach of paragraph 7 and that this situation supports the
claim that damages are not appropriate.
With respect to the Record of Employment, it was argued that the
Employer’s breach of the Settlement has put the grievor in a situation that she
now must show cause why she would be filing a claim for Employment
Insurance so late after her period of alleged eligibility. Her ability to file at this
late date is solely within the discretion of the Employment Insurance
Commission and has the risk of being resolved unsuccessfully. Accordingly, it
9
was alleged that this amounts to a fundamental breach of the Memorandum of
Settlement that should allow it to be terminated. Alternatively, it was submitted
that the Employer should pay her the amount of Employment Insurance that she
will claim for that period. The Union advised that the grievor would undertake to
reimburse the Employer if she succeeded in her claim with Employment
Insurance. It was argued that this would be appropriate because it would put
the financial burden on the Employer that flows from its mistake in issuing an
incorrect Record of Employment in the first place.
On behalf of the Employer it was argued that the wording of the
Memorandum is clear and unambiguous. It was stressed that the Memorandum
simply requires the Employer to pay the grievor the sum of $12,500.00 “less
statutory deductions.” Since that was the amount that was paid and there is no
challenge about the appropriateness of the deductions that were made, it was
submitted that the Employer has fulfilled paragraph 3 of the Memorandum.
Turning to the Letter of Employment, it was stressed that the
Employer did issue a Letter of Employment on August 28 which the grievor
rejected because of the inappropriate spelling of her name. However, the
Employer reissued the letter within a few days. Again, it was said there has
been compliance with paragraph 7 of the Memorandum.
10
Turning to the Record of Employment, the Employer indicated that
it has undertaken to the Union to reissue a Record of Employment in
accordance with instructions that had been obtained from the Employment
Insurance office. Thereafter, it was said that the question of whether the grievor
would be able to receive Employment Insurance benefits was one between her
and Employment Insurance or Revenue Canada, not between her and the
Employer.
It was stressed that the Employer has attempted to comply with
the entire Memorandum and has never tried to “step away from it.” It was said
that this should be seen to be evidence that there has been no fundamental
breach of the Agreement. It was argued that there is no jurisdiction to repudiate
the Memorandum and that the policy of the Grievance Settlement Board is to
enforce settlements achieved between the parties. Reliance was placed on the
decision of D.J.D. Leighton in the matter of Gottwald and Ministry of the Attorney
General, PSGSB File No. P/0127/96.
The Decision
This is an unfortunate situation. The hearing made it clear that the
grievor has suffered immense pain as a result of her difficulty at achieving a
satisfactory resolution of her grievances both before the Memorandum of
Settlement was achieved and even thereafter. Hindsight is always able to see
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things more clearly than one can see them when they are caught up in a
situation. It is easy to look at the situation from the perspective of an arbitrator
and wonder why the parties could not have sat down together calmly and
sensibly as soon as it became apparent that there was dissatisfaction over the
implementation of the Memorandum. Whatever difficulties or differences the
parties have encountered, they were not insurmountable and would have been
far better addressed in the fall of 1998 than by way of a formalized hearing in
late September 1999. However, the parties were not able to avail themselves of
the opportunity to resolve them at that time. Accordingly, this hearing has been
convened to deal with the matter of the enforcement and implementation of the
Memorandum of Settlement.
I must start with recognition of the policy considerations that
govern this Board’s enforcement of Memorandums of Agreement. In the
Gottwald decision, supra, it was said:
The policy considerations behind giving effect to settlement
agreements reached by parties to a grievance were noted in
OPSEU (Policy Grievance) when Arbitrator Kaplan reviewed
several key decisions of the GSB. Arbitrator Kaplan cited Landry-
King 1593/84 (Knopf) where the Board held:
The Board wishes to do everything possible to foster
and honor settlements reached by the parties. Once
settlements are achieved parties must feel confident
that they can rely upon them. Otherwise, there would
be no incentive for the parties to even attempt to
settle matters. Unless there is a compelling reason
why settlement once obtained, cannot be honored by
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the parties, this Board should not even attempt to
interfere with the settlement (at 8-9).
Arbitrator Kaplan also cited Edgett 2476/90 (Dissanayake)
where the Board held that:
Those policy considerations supporting the need to
uphold the final and binding nature of grievance
settlements recognized by private arbitrators and the
Ontario Labour Relations Board, apply with equal
vigor and force in proceedings before this board. The
purpose of the pre-arbitration grievance procedure
under the collective agreement is to provide the
parties opportunity to resolve disputes informally,
promptly and without the expense and delay of
arbitration. Besides, it is generally accepted that a
settlement reached between the parties is a far
preferable way of resolving a dispute than an award
handed down by a third party. If the efficacy of the
settlement is to be maintained, the parties must be
held to their agreement.. (at 10 – 11).
It is important for the Board to respect and honour settlements that the parties
have achieved. The policy of the Board is to encourage settlement and to
provide assistance for reaching the resolution of grievances. The adjudicative
aspect of the Board should be seen as a final resort where the parties should
only turn when there is no ability to reach a resolution on their own. The
adjudicative powers of the Board should not be available to undo or deny
settlements achieved by the parties unless there are compelling policy reasons
why the settlement should not stand.
In the fact situation before me, the first question that must be
addressed is whether there it has been demonstrated that there are any facts
that would demand that the Settlement be set aside. There are no allegations
13
that the circumstances leading up to the signing of the Memorandum or the
negotiations themselves demonstrate any reason why the Memorandum should
not be honoured. Essentially, the Union is taking the position that it is the
“fundamental breach of the agreement” which gives this Board the jurisdiction to
set aside the agreement. One has to look to see whether there have been any
violations of the Agreement and then whether they amount to fundamental
breach.
Turning first to paragraph 3 of the Memorandum, the facts establish
that the Employer did pay the grievor the sum of $12,500.00 less statutory
deductions. It is not alleged that any inappropriate deductions were made. The
grievor’s complaint is that she signed the Memorandum on the understanding
that the statutory deductions would yield her a net outcome of approximately
$10,500.00. I accept the grievor’s word as accurate and believe that this was
her understanding. However, this is not sufficient reason to go behind the clear
and unambiguous words. The Settlement did not promise her a net of $10,500.
It is unfortunate that the signatories to the Memorandum may have improperly
anticipated what the statutory deductions would be. But this is neither unusual
nor is it grounds to set aside the terms of the Settlement. Simply put, the parties
are bound by the clear and unambiguous words of paragraph 3. The Employer
has complied with that. The grievor’s misunderstanding and disappointment
could inspire the Employer to try to remedy the pain the grievor has suffered by
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paying her the difference between what she has already received and an
amount that would yield her a final sum of $10,500.00. However, there are no
legal grounds that could or would compel me to go behind the strict words of
paragraph 3 and order the Employer to do this.
Turning to paragraph 7 of the Memorandum, the Employer had
agreed to issue a letter of employment by August 31, 1998. The Employer did
issue a letter of employment dated August 27. The grievor took no objection to
the text of the letter, but did object to the fact that it referred to her as Catherine
rather than Cathy. She refused to accept the letter as written and the Employer
undertook to amend the letter. There was a letter filed in evidence dated
August 31 issued in the grievor’s correct legal name. I accept the grievor’s
evidence that she never received a copy of this. There was no explanation
available as to why she never received a copy. The representative of the
Employer understood that the grievor was sent the amended letter. There was
no proof the letter was sent and yet there is no reason to suspect that it was not.
What matters is simply that an amended letter now exists that complies with
paragraph 7 of the Memorandum of Settlement. As the Union quite properly
conceded, it cannot quantify the damages the grievor may have suffered as a
result of the fact that she did not receive this letter until the day of the arbitration
hearing. Indeed, the damages do not seem to be quantifiable. It is very
regrettable that the grievor did not receive this letter. It is not helpful to anyone
to try to attribute fault in these circumstances. The task of this Board is simply
15
to see whether there has been compliance. Given that the Employer did issue a
letter by August 31, 1998 and given that the grievor now has a satisfactory letter
in her hands, I am satisfied that there has been compliance with paragraph 7 of
the Memorandum.
Turning to paragraph 9 of the Memorandum, I now deal with the
question of the Record of Employment. The position of the Employer
throughout has been that it completed the Record of Employment on the advice
of the officials of the Employment Insurance office and did so with the intent of
complying with paragraph 9 at all times. There is nothing in the Memorandum
that requires the Employer to fill out the form in a certain way or guarantees that
the grievor will achieve any certain result with the Employment Insurance
Commission. It may well be that the entire scope of the Settlement was drafted
with the intent of shifting financial liability over to the Employment Insurance
fund. However, there is nothing on the face of the document that makes the
document conditional on the grievor achieving the desired result with
Employment Insurance. Accordingly, whether the Employer filled out the form
correctly or in the most advantageous way, I am satisfied that the Employer did
attempt to comply with section 9 of the Memorandum. It completed the form in
good faith and it was appropriate to rely on the advice of the Employment
Insurance office. Further, the Employer also indicated a willingness to reissue
the Record now in accordance with the new advice that has been obtained.
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Therefore, I am not prepared to find that there has been a fundamental breach
of the Memorandum.
The Employer is now undertaking to reissue the Record of Employment in a way
that would maximize the grievor’s opportunities to make a fresh and complete
claim for benefits to Employment Insurance. The Employer has advised the
Board that it is prepared to issue an amended Record of Employment indicating
that the grievor was employed in 1997 and a new Record of Employment would
be issued to recognize that. Further, an amended record for 1998 would be
issued indicating that she worked on contract from March until August 31, 1998
with her last day of work being August 31, 1998 and the last day of her pay
period being the same date. It would also indicate that the income received was
income pursuant to paragraph 3 of the Settlement and would be eligible
earnings to be recorded in box 15 of the Record of Employment. Further, there
has been an undertaking by the Employer that it would work together with the
Union in drafting a letter to accompany the amended Record of Employment
indicating why there has been a delay in the grievor submitting her application
for Employment Insurance. The Employer has undertaken that it will do
everything legally possible to maximize the grievor’s ability to make a successful
claim before Employment Insurance and to carry out the shared understanding
of the way that this could be achieved when the Employer and Union
Representatives consulted with a representative of the Employment Insurance
Commission.
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Given these undertakings, I declare that there has been compliance
with paragraph 9 of the original Memorandum of August 6, 1998.
I am mindful of the Union’s forceful submissions to me that the
Memorandum of Settlement should be set aside because of the difficulties that
the grievor has encountered in having the spirit and intent of the Memorandum
fulfilled. I am also mindful of the tests enunciated in the Ontex Resources and v.
Metalore Resources Ltd. case, supra. However, on the facts and evidence
presented to me, I have not been convinced that the circumstances are present
to justify a declaration of a fundamental breach or a finding that justice demands
that the agreement be set aside. Accordingly, even if I did have jurisdiction to set
the agreement aside, I would not have done so because the facts do not warrant
it. Further, given the tests enunciated in that case, I would not have concluded
that a fundamental breach has taken place. Any harm, if any, created by the
alleged breaches of paragraphs 3 and 7 could have been remedied by way of
specific performance and/or damages. I have found no breach of paragraph 3.
There are unfortunate circumstances surrounding compliance with paragraph 7,
however I cannot conclude that there has been a violation of that provision.
Further, the undertakings with regard to paragraph 9 are sufficient to ensure that
there will be compliance with not only the spirit but the intent of the Settlement.
Accordingly, I cannot conclude there has been a fundamental breach of the
Settlement.
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Having considered all the evidence and the submissions of the
parties, I conclude that the Employer is compliance with the Memorandum.
DATED at Toronto, Ontario, this 21ST day of October, 1999.
Paula Knopf – Vice-Chair