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HomeMy WebLinkAbout1989-0888.Jansen.90-05-08 ONTAR/O EMPL OYES DE LA COURONNE CROWN EMPLOY£ES DE [. *ONTARrO GRIEVANCE ' C,OMMIS$1ON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS :180 DUNOAS STREET WEST, SUtTE 2100. TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/T~L~'P~ONE: (,~16) 326-1388 180, RUE DUNDAS OLIEST, BUREAU 2~O0, TORONTO (ONTARtO), M5G lZ8 FACSIMILE/TEL~COPlE : (416J 326-~396 888/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT EOJtRD BETWEEN: OPSEU (Jansen) Grievor - and - The crown in Right of Ontario (Ministry of Correctional Services) Employer - and - BEFORE: M.V. Watters Vice-Chairperson I. Thomson Member M. O'Toole Member FOR THE $. Ballantyne GRIEVOR: Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors · FOR THE S. Wilson EMPLOYER: Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING: April 14, 1990 The'grievor was discharged from his employment at. the Toronto Jail on June 12, 1989. A grievance was subsequently filed in which he claimed reinstatement and full compensation. The dispute was scheduled for pre-hearing on November 1, 1989. On that date, Hr George Richards, a Senior Grievance Officer with the Union, attended on the grievor's behalf. Mr. Greg Lee, a Human Resources Officer, represented the Employer. The sole issue in this case is whether the latter gentleman made a counter-offer which was later accepted by the Union. If a settlement was, indeed, effected by the parties, this Board would lack the jurisdiction to proceed with a hearing on the merits. At the commencement of the hearing, counsel for the Employer submitted that we Tacked the requisite authority to consider whether a settlement had been concluded. Counsel argued that our jurisdiction under the Crown Emoloyees Collective Barqaining Act, R.S.O. 1980, Chapter 108, as amended, did not extend to the interpretation of a memorandum of settlement. He further asserted that the Board could not construe the flow of documentation between the parties to determine if such evidenced a settlement. The Employer relied on the award in Sim and Bain, 1387, 1388/86 (Draper) in support of this position. The Board elected to reserve our decision on the above- stated objection and proceeded to hear oral evidence. We have now had the opportunity to fully consider the submission. In our judgment, we do possess the jurisdiction to determine whether the parties effected a settlement of the issues in dispute. We think that this case is distinguishable from Sim and Bain. There, both parties asked the Board to interpret terms of settlement which had been reduced to written form. The Board concluded that it lacked the necessary authority to embark on an interpretation of the agreement. In this instance, we are being asked a more fundamental question, this being, whether a settlement actually exists between these parties. In our minds, this is a significantly different issue. Indeed, the Board considers that this case is much closer to the factual situation found in Cover, 256/80 (Kennedy) which was relied on by the Union. It is apparent from a reading of the award that the Board there was prepared to interpret written communications in an effort to find whether a settlement had been reached. After examining these communications, it held that a settlement did exist. The Board, therefore, concluded that it would be improper to entertain the merits of the dispute. In this re§ard, the award states at page four (4)' "There are numerous arbitral authorities to the effect that a grievance that is settled, withdrawn or abandoned cannot be'the subject matter of a subsequent submission to arbitration." We are inclined to adopt an approach similar to that employed in Cover. More specifically, we conclude that our jurisdiction to proceed is found within section 19 (1) of the Crown Employees Collective Barqaininq Act. Under that section, the Board is empowered to determine, inter alia, whether a matter is arbitrable. In our assessment, it is necessary for us to examine the facts in order to properly consider whether these parties arrived at a binding agreement following the pre-hearing meeting. If this question were to be answered in the affirmative, this Board would be deprived of the right to hear the grievance. Conversely, if the parties were not ad idem, the grievance could go forward. The Employer would then be required to commence its case and to show just cause for the discipline. A contrary finding would, in our judgment, undermine the sanctity of settlements freely concluded as it would permit parties to withdraw from such agreements with impunity. For reasons which are obvious, that result would not provide for good labour relations. We are consequently disinclined to adopt reasoning which could have that effect. The Union argued, in the alternative, that the Employer had waived its right %o now raise this objection. This submission was premised on an earlier agreement of the parties to restrict argument, before another panel of this Board, to whether there had been a settlement of' the grievance. Zt is unnecessary to address this argument given the conclusion stated above. Had we been required to resolve the issue, the Board would have been inclined to accept the Union's submission as we think it was supported by the facts. The Employer also objected to the introduction of evidence as to what occurred during the pre-hearing of November I, 1989. Simply put, it was counsel's submission that any discussions theFein were made on a without pFejudice basis and should therefore not be admissible. This position was rejected by the Board at the hearing. The Board agrees with the geneFal proposition that discussions at a pre-hearing made with a view to narrowing or settling the outstanding issues would normally be inadmissible. In this instance, however, it was necessary to receive such evidence so that we could determine if an unconditional counter offer had been made on behalf of the Employer. We think that the type of situation now before us constitutes an exception-to the normal rule. In our judgment, evidence as to what transpired at a pre-hearing may be received to establish the existence of a settlement. Ultimately, we consider that our duty to determine the jurisdictional issue is paramount to considerations which might otherwise serve to exclude the evidence in question. If a Board were to find that a settlement had not been reached on the facts, the matter could proceed before another panel on the merits, This procedure would elimihate the possibility of prejudice to the Employer. Mr. Richards presented evidence for the Union. The Employer elected against calling evidence. The testimony of Mr. Richards may be stated as follows: 4 (i) Mr. Richards attended the pre-hearing on behalf of the grievor who could not be in attendance on that day. At the meeting, he presented prospective terms of'settlement to Mr. Lee. The unexecuted memorandum of settlement read: MEMORANDUM OF SETTLEMENT BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND MINISTRY OF CORRECTIONAL SERVICES RE: Grievance of D. Jansen Dated June 12, 1989 The parties hereby agree as follows: 1. The dismissal of Mr. Jansen dated is hereby rescinded. 2. All records relating to the grievor's dismissal shall be destroyed, 3. No reference to the circumstances giving rise to the dismissal will be communicated to any prospective employer asking a reference check on Mr. Jansen. 4. The grievor will submit and the employer will accept the attached letter of resignation, 5, The employer wilt pay Mr. Jansen the sum of $ , 6. The Grievance Settlement Board shall remain seized to deal with any disputes that may arise over the implementation of this settlement. 7. The union shall notify the Grievance Settlement 8card that the request for a hearing is withdrawn. BATEB at Toronto, this day of November, 1989. FOR THE UNION: FOR THE EMPLOYER: Attached thereto was an unsigned letter of resignation as provided for in paragraph four (4). (ii) After reviewing the above documents, Mr. Lee made certain handwritten amendments to same. Firstly, with respect to paragraph number four (4), he added the words "to be effective the date of original dismissal." Secondly, paragraph number five (5) calling for the payment of compensation was struck out. Lastly, paragraphs six (6) and seven (7) were accordingly renumbered. There was little discussion, if any, on the meaning to be attributed to the other items. The pre-hearing then adjourned so that Mr. Richards could get instructions on what he perceived to be a counter offer. It was Mr. Richards recollection that Mr. Lee did not specify this was a conditional counter offer in the sense that it required the approval of his superiors. Zndeed, he believed that Mr. Lee had the "authority to make a deal." (iii) the above-noted amendments were communicated to the grievor by Mr. Richards through correspondence dated November 3, 1989. He enclosed therewith three (3) copies of a revised memorandum of settlement as well as the draft letter of resignation. The grievor was asked to review, sign and return these documents. ~ (iv) Sometime thereafter, the grievor returned this documentation to Mr. Richards. The grievor had signed the letter of resignation. Additionally, he inserted the date of June 12, 1989 on same, this being the date of discharge pursuant to the revised paragraph number four (4). The grievor did not sign the memorandum o¢ settlement. He did, however, insert the date of "12 June 1989" into paragraph number one (1) of same. This document was subsequently signed by Hr. Richards. Zt was his belief that the grievor had failed to sign through oversight. Mr. Richards testified that the grievor was "quite content" with the resolution of the matter. He had no doubt as to his authority to sign the terms of settlement, Alt of this documentation was subsequently forwarded to Mr. Lee on November 29, t989. (v) In a telephone conversation in or about mid-December, 1989, Mr. Lee questioned Mr. Richards as to the effect of paragraph number three (3) of the memorandum of settlement. Mr. Richards then advised that the prohibition contained therein would apply to prospective employers within government, including the Ministry of Correctional Services, as well as to those in the private sector. Mr. Lee indicated that he had not intended this result to flow from the language of this paragraph. Indeed, he thought the language would entitle the Ministry to refuse to rehire the grievor in future regardless of the disposition of related charges in Court. Mr, Richards-testified that Mr. Lee wanted to retain a right in the Employer to communicate with Superintendents of other Ministry facilities as to the facts surrounding the grievor's resignation. 7 (vi) By letter of December 19, 1989, Mr. Lee purported to revise the terms o¢ the memorandum of settlement. The m~st material revision was to paragraph number three (3) which had been altered to read: "No reference to the circumstances giving rise to the dismissal will be communicated to any other prospective employer asking a reference check on Hr. Jansen". (emphasis OM rs ) Mr. Richards was unwilling to entertain this change as he felt that the grievor sh'ould be eligible for future government work if acquitted on the outstanding charges. It was his evidence that Mr. Lee did not, in any way, comment on such a caveat to paragraph number three (3) during the course of their discussions at the pre-hearing. He asserted that "a deal would not have been struck" if Mr. Lee had insisted on the inclusi.on of that type of provision in the memorandum of settlement. Mr. Richards informed the Board he was surprised when the Employer attempted to raise this issue for the first time in mid-December, 1989. It was the position of the Union that a binding settlement had been affected by the parties. Counsel described Mr. Lee's amendment to the original Union proposal as a counteroffer. She emphasized that this was accepted by the grievor and the Union before the Employer attempted to withdraw from the agreement in mid-December. Counsel noted that Mr. Lee did not indicate he was making a conditional offer nor did he state that the terms of same had to be approved by his superiors. We were urged to conclude bhat if such a limitation had been intended, Mr. Lee 8 would have definitely expressed this at the pre-hearing. It was the submission of the Union that an inference could be drawn from his silence that he possessed the necessary authority to settle. In summary, counsel argued that an agreement had been reached on the appropriate disposition of the grievance. We were asked to infer from the evidence that Mr. Lee understood the plain meaning of same and to note that he had not attended at the hearing to state otherwise. Lastly, counsel submitted that the settlement was complete on the acceptance of the counter-offer and that it did not have to be signed to be effective. Thereafter, it was too late to unilaterally change the bargain, even though it might then appear to be an unfortunate agreement from the perspective of the Employer. To quote Union counsel, "second thoughts cannot undo a done deal." The Board was referred to the following awards in support Of this position: United Automobile, Aircraft and Aqricultural Implement Workers of America (UAW - CIO) in re The Fruehauf Trailer Company of Canada, Ltd., L.A.C. 848 (Cross, November 30, 1951); United Automobile, Aircraft and A~ricuttural Implement Workers of America (UAW - CI0) in re The Ford Motor Company of Canada, Ltd, L,AiC. 1159 (Lang, November 29, 1952); ~.~ Bilt-Rite Upholsterin~ Co. Ltd.. And Upholsterers' International Union of North American. Local 30, 24 L.A.C. (2d) 428 (Rayner, November 1979). In response, it was the position of the Employer that the parties had never been ad idem on the terms of the settlement, 9 particularly, in respect of paragraph number three (3). Counsel relied on Mr. Richards statement in chief that the paragraph was to apply to any "other" employer. He urged we not accept the subsequent clarification that was made, to the effect that it was intended to encompass positions within the Ministry, as such was elicited through a leading question, counsel further argued %hat reference was not made to paragraph number three (3) in Mr. Richards notes which were completed after the pre-hearing. We were, therefore, requested to find that there was no agreement on that item. Lastly, the Employer submitted that it should be accorded the right to ratify the terms of any agreement made by Mr. Lee. Counsel Submitted that such a right was.integral to .the labour relations system. The Board has now had the opportunity to review all of the evidence presented. In our judgment, the facts support the Union's claim that the Employer made an unconditional counter offer which was accepted by the Union and the grievor prior to Mr. Lee expressing concern as to the content of paragraph number three (3). We have no doubt from the evidence adduced that Mr. Richards had the authority to make the initial offer and to accept the terms of the counter offer. Similarly, the Board is unable to isolate any evidence suggesting that Mr. Lee's changes to the original offer, which we consider to be tantamount to a counter offer, were conditional in the sense they were subject to the approval of others higher up within the Ministry. Mr. 10 Richards did not perceive that this right was retained by Mr. Lee. It is our judgment, from an assessment of all of the evidence, that had such right been retained, Mr. Lee would have expressly declared this to be the case when the amended terms' were advanced. The Employer's decision not to call Mr. Lee, has left this assumption intact. In summary, the Board has been persuaded that the parties did conclude a settlement of the instant dispute. In so concluding, we reject the Employer's submission that the parties were not ad idem. From our review of the evidence, we are satisfied that the Employer offered to settle the matter on the terms of the counter offer as proposed at the pre-hearing. From the facts presented, there was apparently little discussion as to the content of paragraph number three (3). We note that Mr. Lee did not make any alterations to this paragraph as he did with respect to certain of the other items as identified above. The Board has been satisfied t~at both parties were content with the meaning of paragraph number three (3) until the Employer began to have second thou9hts on same in mid- December 1989. The Employer's decision not to call Mr. Lee as a witness supports this conclusion. The Board is not inclined to give effect to the Employer's argument which focused on Mr. Richards use of the word "other" in reference to paragraph number three (3). From All of his evidence, the Board cannot conclude that Mr. Richards in any way suggested to Mr. Lee the paragraph 11 only applied to external or non-Ministry employers. We would agree with counsel for the Union that the content of paragraph number two (2) is consistent with this conclusion. We accept Mr. Richards evidence that "a deal" would not have been reached if such a restriction had been raised at the pre-hearing of November 1, 1989. Counsel for the Employer did not argue that the grievor's failure to Sign the memorandum of settlement constituted a fatal omission, tn any event, the Board is in agreement with the award in Bilt-Rite Upholstering Co. Ltd= that settlements do not have to be put into written form to be binding upon the parties. On the basis of all of Mr, Richards evidence, we have been persuaded that the grievor intended to accept the. Employer's counter offer.. His signing of the letter of resignation and the filling in of certain blank spots on the memorandum is consistent with such intent. As previously stated, Mr. Richards also testified that the grievor was satisfied with the agreement. Had such not been the case, it is unlikely that he would have signed the document. As an experienced Grievance Officer, he would fully comprehend the pitfalls of signing such a document without the grievor's consent and direction. The Board has not been satisfied that Mr. Richards notes are all that helpful in the resolution of this dispute. They are' very brief in nature and, clearly, were not intended to document all facets of the settlement. 12 The Board, therefore, concludes that the parties settled the matter on the terms of the Employer's counter-offer as outlined above. It is not this Board's task to interpret same, nor were we ultimately asked to do so. In our judgment, it is up to the parties to give effect to their agreement. Given our finding of fact, the Board does not possess the jurisdiction to entertain the merits of the dispute. Dated at Windsor, Ontario this 8th day of Hay , 1990. M.V. Wat~;s, Vice-Chairperson 13