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HomeMy WebLinkAbout2006-0667.Samsone.13-06-18 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#2006-0667, 2006-0668, 2006-0669, 2006-2409, 2008-0041, 2008-0042, 2008-1184, 2008-1185, 2011-3750, 2011-3751, 2011-3752 UNION#2006-0582-0052, 2006-0582-0053, 2006-0582-0054, 2006-0582-0145, 2008-0582-0023, 2008-0582-0024, 2008-0302-0001, 2008-0302-0002, 2012-0582-0007, 2012-0582-0008, 2012-0582-0009 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Samsone) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Christopher Albertyn Vice-Chair FOR THE UNION Craig Flood Koskie Minsky LLP Counsel FOR THE EMPLOYER Peter Dailleboust Ministry of Government Services Legal Services Branch Counsel HEARING May 28, 2013 - 2 - Decision The issue [1] The union claims the Ministry has so fundamentally breached, or repudiated, a Memorandum of Settlement (the Settlement) that I ought to declare the Settlement void and reinstate the grievor’s grievances that were withdrawn under the Settlement and award monetary and other relief. Background facts [2] The parties concluded the Settlement on August 15, 2012. Pursuant thereto, the parties agreed I was seized for the purposes of interpretation and implementation. A dispute has arisen regarding implementation. [3] The grievor formerly worked at the Toronto East Detention Centre (TEDC). He is currently on WSIB disability absence from work. His disability was occasioned by mental stress from working at the TEDC. [4] The Settlement resolved 11 grievances. The parties agreed that the terms of the Settlement were to remain confidential. I respect their agreement, and I will refer to the Settlement only as strictly necessary. The confidentiality provision, at paragraph 8 of the Settlement, has a bearing on the dispute. It reads: 8. This MOS and Release are confidential between the Grievor, the Union and the Employer and shall not be disclosed by any of them to any other person except to immediate family, legal and financial advisors of the Grievor and for the purpose of implementing or enforcing the terms of the Settlement and Release and subject to any legal requirement. [5] At some point during the mediation leading to the Settlement, or after the Settlement was concluded, Pauline Jones, Management Liaison Officer to the Assistant Deputy Minister, made an undertaking to assist the grievor. The parties disagree on when the undertaking was made (the union says it was a material condition of the Settlement, a fundamental part of what induced the grievor to enter into the Settlement; the employer says it was an arrangement concluded after the Settlement). Given the conclusions reached below, nothing turns on when the undertaking was made. The last sentence of paragraph 5 of the Settlement contains a general undertaking by the Ministry to the grievor: The Employer shall provide assistance where necessary to the Griever with respect to his claim(s) for benefits for himself or his dependents. [6] The undertaking arose because the grievor’s spouse was no longer covered for extended health care benefits through her own employment, and the grievor needed her and their child to be included under his benefits, so that he could obtain reimbursement of their medical claims from the Ministry benefits insurer. He had been unable to accomplish this. He had been told he had to complete various online forms to do so and, for that, he had to access his OPS WIN (Workforce - 3 - Information Network) from a computer at his workplace. The grievor’s disability made him unable to go to the TEDC to do so. [7] Although specific reference to Ms. Jones is absent from the written content of the Settlement, the undertaking was seriously made and it was accepted by the union and the grievor and the common understanding was that Ms. Jones would be responsible for providing the necessary assistance. [8] Ms. Jones offered to assist the grievor to resolve the administrative matter of giving him online access to his WIN account, so as to ensure coverage for his dependents and to secure reimbursement of their claims. This was beyond Ms. Jones’s normal responsibilities. She made the undertaking in order to ensure that all of his outstanding concerns were attended to. [9] Ms. Jones advised that she would shortly be going on vacation, out of the country, but she would do as much as she could beforehand. [10] The grievor’s expectation of the arrangement was that only Ms. Jones would deal with it. Ms. Jones’s expectation was she would do what was necessary to accomplish the objective of having the grievor’s dependents covered by the benefits insurer. [11] On August 16, 2012, the day after the Settlement was concluded, Ms. Jones endeavoured to accomplish what she had promised. She found that the grievor’s status continued to be administered from the TEDC. She had no access to his WIN account. To determine the grievor’s then current medical benefit status, she contacted Gail Warner, the Business Manager / Administrator of the TEDC, and explained the grievor’s lack of access to his Ministry account to be able to add his dependents. As part of Ms. Warner’s responsibilities at the TEDC, she was entitled to access the grievor’s medical benefits status. Ms. Jones asked Ms. Warner to get the information as soon as possible. Ms. Jones did not receive the information from Ms. Warner before she left on her two weeks vacation. [12] When speaking to Ms. Warner, Ms. Jones did not convey the circumstances giving rise to her request for assistance. She did feel it necessary to explain her request was associated with Minutes of Settlement concluded between the parties. She anticipated Ms. Warner would respond to her. She did not convey that Ms. Warner was only to communicate with her and not directly with the grievor. [13] On August 23, 2012, Ms. Warner contacted Ontario Shared Services (OSS) and received confirmation that the grievor was not required to use a work computer to access the required forms, and that he could contact OSS directly for assistance. On August 24, 2012 she forwarded this information via email to Ms. Jones and received an out of office reply that she was on vacation. Unbeknownst to her that there would be any problem doing so, and with the purpose of expediting matters, Ms. Warner telephoned the grievor and informed him of the OSS contact numbers to arrange that he access the forms online from his home, and not the TEDC, his workplace. [14] The grievor says the information provided to him by Ms. Warner regarding contacting OSS was generic, which he already possessed. - 4 - [15] The grievor was most upset by being phoned by Ms. Warner. He explains the contact exacerbated his disability, by making him distraught, angry and confused. He associates Ms. Warner with the TEDC, the workplace where he was employed, where his grievances arose, and where his claim of mental stress injury under the Workplace Safety and Insurance Act was centred. He also interpreted her call as a breach by Ms. Jones of her undertaking, as he understood it, that she only would deal with his dependents’ benefits issue. [16] On September 4, 2012, Ms. Jones was made aware that Ms. Warner had contacted the grievor to provide him with the required information to assist him to access his WIN remotely. [17] On September 12, 2012, Ms. Warner informed Ms. Jones via an email dated August 24, 2012, of the procedure to rectify the grievor’s dependents’ benefits problem. Ms. Warner confirmed the information he had received was incorrect and that he could remotely access his WIN and complete the required forms. He had first to make arrangements with the OSS contact centre. To that date the grievor had not accessed OSS or made the changes. [18] Accordingly, on September 12, 2012 Ms. Jones contacted OSS and dealt directly with a customer agent. A time sensitive ticket was logged so that this matter could be acted upon immediately with the grievor’s follow-up. OSS made it clear to Ms. Jones that the necessary changes could be completed only with the grievor’s signature. Due to the time sensitivity of the logged ticket Ms. Jones telephoned the grievor on September 12, 2012 to advise him she was sending him the information via email. The grievor’s spouse answered the phone. Ms. Jones says left a message for the grievor to call her. The grievor’s spouse says Ms. Jones repeatedly confirmed she was speaking to the grievor’s spouse and then made reference to the Settlement regarding the grievor’s benefits claims. The purpose of the call was to have the grievor phone Ms. Jones. [19] Ms. Jones also spoke to Bob Gordon, a retired employee from the Ministry who has been the grievor’s support during the proceedings, to assist her in giving the grievor the “heads-up” of what had to be done. Mr. Gordon explained that the grievor did not want to talk to her as he felt Ms. Jones had violated the Settlement. According to Ms. Jones, Mr. Gordon said he would have the grievor contact Ms. Jones. [20] Ms. Jones did not receive a call from the grievor. Given the time sensitivity of the ticket issued by OSS, she again phoned the grievor to relay the OSS information to him and confirm his home email address. She then sent him an email with attachments, including the forms with step-by- step directions for remitting the completed forms by fax and mail the originals. [21] The grievor’s dependents’ benefits issue has been resolved. Parties’ submissions and decision [22] The union sees Ms. Jones’s involving Ms. Warner in the resolution of the grievor’s dependents’ benefits issue as a violation of paragraphs 5 and 8 of the Settlement: the employer undertaking to provide assistance where necessary to the griever with respect to his claim(s) for benefits for himself or his dependents, and the confidentiality provision. - 5 - [23] Union counsel says the grievor bargained for a secure line of communication for the Crown to avoid the TEDC, to avoid the locus where his mental stress had been caused. [24] Union counsel argues there has been a fundamental breach of the grievor’s entitlement to peace of mind, depriving him of substantially the whole benefit of the Settlement, as in Spirent Communications of Ottawa Limited v. Quake Technologies (Canada) Inc., 2008 ONCA 92 (CanLII), particularly at ¶¶35-36. For an assessment of the mental distress suffered by the grievor as a result of the employer’s conduct, union counsel refers to Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 SCR 3. [25] Leaving aside for the moment the question of whether the breach of the Settlement was fundamental, whether it amounted to a repudiation, entitling the union to have the Settlement declared a nullity, the first question is whether there has been any breach of the Settlement by the Ministry. [26] Ministry counsel argues that any verbal undertaking made by Ms. Jones is unenforceable because of the provisions of paragraph 7 of the Settlement: 7. This written MOS represents the complete settlement agreement between the parties in relation to all employment related matters between the parties. The parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this written settlement. [27] Given the conclusion I reach below, it is not necessary for me to decide whether the verbal undertaking made by Ms. Jones forms part of the Settlement or whether it is unenforceable by reason of paragraph 7, above, as the employer argues. [28] On the wording of the undertaking to provide assistance to facilitate the grievor’s benefits claims, the obligation rests with the Ministry, not Ms. Jones. Had Ms. Jones for whatever reason been unable to fulfil her verbal undertaking, the obligation in paragraph 5 of the Settlement would still have rested with the Ministry. In her absence someone else would have had to accomplish it. Nonetheless, for the purpose of the union’s motion, I interpret the provision to refer specifically to Ms. Jones, because she made the undertaking to fulfil it. [29] As the Ministry submits, Ms. Jones took steps to fulfil the Ministry’s obligation under paragraph 5 of the Settlement. She did not have administrative access rights within the government’s computer system to enable her to obtain the information she felt was necessary to assist the grievor. Ms. Warner did have such access. Ms. Jones felt she needed Ms. Warner’s assistance to obtain the information she thought was necessary to fulfil the obligation under paragraph 5 of the Settlement. That was why she contacted Ms. Warner and asked for her assistance. It was a bona fide request in an effort by Ms. Jones to fulfil the obligation she had undertaken. [30] These observations apply also to the union’s claim of a breach of paragraph 8 of the Settlement. The confidentiality provision allows disclosure as is necessary to implement the Settlement. Ms. Jones could have mentioned to Ms. Warner that her request for assistance was pursuant to the Settlement. She did not, though. She made no disclosure of why she needed Ms. Warner to obtain the necessary information. There was accordingly no breach of paragraph 8 of the - 6 - Settlement and, even had Ms. Jones mentioned to Ms. Warner the reason for her request, that would have been part of the implementation of the Settlement and so no breach of it. [31] This case involves a misunderstanding, not a breach of the Settlement. The grievor reasonably thought that his only contact would be with Ms. Jones. She reasonably thought she could use Ms. Warner to assist her to accomplish what she had promised the grievor. Neither expected Ms. Warner to contact the grievor directly. Ms. Warner was not aware that her contacting the grievor would so upset him, or that he would see her doing so as a breach of the Settlement. [32] The union says Ms. Jones should never have contacted Ms. Warner. I am not persuaded of that. Ms. Jones believed her doing so would help to establish the grievor’s benefits claims. Should Ms. Jones have specifically alerted Ms. Warner that she must not contact the grievor directly? Should she have had in her mind that the grievor was on WSIB because of his mental stress from working at the TEDC and should she have drawn the connection that any contact from Ms. Warner would have caused the grievor’s upset, and should she further have anticipated that Ms. Warner would speak directly to the grievor before responding to her? I don’t think so. These were matters that were not close to the concern Ms. Jones had at the time, which was to see that the necessary steps were taken so that the grievor’s dependents could be added within the OPS computer system. [33] Taking all of the above into consideration, what happened was regrettable, though it does not amount to a breach of the Settlement. [34] In the circumstances, there are no grounds to set aside the Settlement. Dated at Toronto, Ontario this 18th day of June 2013. Christopher Albertyn, Vice-Chair