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HomeMy WebLinkAbout2014-3795.Samsone.16-08-29 Decision Crown 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#2014-3795, 2014-3796, 2014-3797, 2014-3798, 2014-3799 UNION#2014-0582-0046, 2014-0582-0047, 2014-0582-0048, 2014-0582-0049, 2014-0582-0050 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 Ian Anderson Vice-Chair FOR THE UNION Craig Flood Koskie Minsky LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel HEARING August 23, 2016 - 2 - Decision [1] I have before me five grievances all filed by the Grievor and dated November 13, 2014. On August 15, 2012, the Union, the Grievor and the Employer had entered into a Memorandum of Settlement with respect to 11 earlier grievances filed by the Grievor (the “MOS”). The MOS provides that Vice-Chair Albertyn remains seized “for the purposes of interpretation and implementation” of the MOS and that certain disputes shall be referred to him. The Employer seeks an adjournment of the proceedings before me so that it may argue before Vice-Chair Albertyn that the MOS precludes the Union and the Grievor from advancing the five grievances or alternatively that one of them is properly referred to him. The Union does not agree that the MOS precludes the five grievances or requires any of the grievances to be referred to Vice-Chair Albertyn. It opposes the adjournment request. [2] It is necessary to set out the relevant parts of the MOS. I have been selective in doing so as the MOS contains a confidentiality clause. The MOS provides in part as follows: GSB 2006-0667/OPSEU# 2006-0582-0052 GSB 2006-0668/OPSEU# 2006-0582-0053 GSB 2006-0669/OPSEU# 2006-0582-0054 GSB 2006-2409/OPSEU# 2006-0582-0145 GSB 2008-0041/OPSEU# 2008-0582-0023 GSB 2008-0042/OPSEU# 2008-0582-0024 GSB 2008-1184/OPSEU# 2008-0302-0001 GSB 2008-1185/OPSEU# 2008-0302-0002 GSB 2011-3750/OPSEU# 2012-0582-0007 GSB 2011-3751/OPSEU# 2012-0582-0008 GSB 2011-3752/OPSEU# 2012-0582-0009 MEMORANDUM OF SETTLEMENT BETWEEN: Ontario Public Service Employees Union (THE UNION) - and - SAMSONE, Robert (THE GRIEVOR) - and - THE CROWN IN RIGHT OF ONTARIO (Ministry of Community, Safety and Correctional Services) (THE EMPLOYER) - 3 - WHEREAS the Grievor and the Union have filed the above noted 11 grievances; and WHEREAS the Grievor has filed many disputes including that the Employer failed to properly accommodate him pursuant to the Ontario Human Rights Code and a Workplace Discrimination and Harassment-Complaint; and WHEREAS the Parties wish to fully and finally resolve all of these employment related disputes; and NOW THEREFORE, the parties agree to a full and final settlement of all employment related matters up to the date of signing of this Memorandum of Agreement without prejudice and precedent on the following terms: 1. [Omitted] 2. The Union and the Grievor agree to withdraw the above noted grievances and any other individual grievance filed on behalf of the Grievor up to the date of this Memorandum of Settlement (MOS) and to so notify the Grievance Settlement Board. Nothing herein precludes the Grievor’s interest with respect to any group grievance of which he is or may be a part. 3. The Grievor and the Union agree that no further action is required by the Employer with respect to any WDHP complaint filed by the Grievor, subject to any legal requirement. 4. [Omitted] 5. The Parties acknowledge that the Grievor is currently in receipt of LTIP benefits. The Employer acknowledges that should the Grievor be medically approved to return to work in any position that they have an obligation pursuant to the Ontario Human Rights Code to offer reasonable accommodation which addresses any medical restrictions he may have at that time. The Employer shall provide assistance where necessary to the Grievor with respect to his claim(s) for benefits for himself or his dependents. 6. In consideration of the above, the Grievor and the Union agree to release and forever discharge the Crown in Right of Ontario and the Employer, its servants, agents, directors of and from all actions, causes of actions, claims and demands of every nature and kind arising out of these grievances or circumstances and facts leading up to these grievances, including but not limited to all claims under the Public Service of Ontario Act, Human Rights Code, the Ombudsman’s Act and the Employment Standards Act of which the Grievor is currently aware. The Grievor and the Union further agree that any facts related to the grievances, will not form the basis of any future proceeding against the Crown in Right of Ontario, the Employer, its servants, agents, and directors. The Union and the grievor agree that any and all grievances and human rights applications are withdrawn. - 4 - 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. 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. 9. The Parties agree that Vice-Chair Albertyn-shall remain seized with respect to this MOS for the purposes of interpretation and implementation. Any disputes about the propriety of communications regarding the Grievor’s employment or the terms of this settlement shall go back before Vice-Chair Albertyn for resolution. [3] The five new grievances allege: bullying and harassment by Pauline Jones (GSB File No. 2014-3795, referred to as “Grievance 432”); bullying and harassment by supervisors, managers and senior officials in violation of the Ontario Human Rights Code (the “Code”) (GSB File No. 2014-3796, referred to as “Grievance 433”); violation of Article 3.2 of the collective agreement (no discrimination or harassment by reason of union activity) (GSB File No. 2014-3797, referred to as “Grievance 434”); failure by the Employer to recognize a disability under the Code (GSB File No. 2014-3798, referred to as “Grievance 435”); and failure on the part of the Employer to provide a treatment plan (GSB File No. 2014-3799, referred to as “Grievance 436”). The Union provided particulars to the Employer by letter dated October 14, 2015. By decision dated October 20, 2015, I directed the provision of further particulars. The timelines set out by that decision were apparently altered on the agreement of the parties. By letter dated August 9, 2016, the Union provided the further particulars. [4] The Employer argues that the MOS resolved all employment related complaints that the Grievor had or could have had as of the date of its signing, August 15, 2012. The Employer notes the heavy reliance in the particulars on events which pre-date that date with respect to Grievances 433 - 436. With respect to Grievance 432, the Employer argues that based on the particulars provided it relates to the implementation of the MOS. The MOS provides that disputes with respect to implementation of the MOS are to be referred to Vice-Chair Albertyn. Therefore, the Employer argues that Grievance 432 should be referred to Vice- Chair Albertyn. However, the Employer’s primary argument is that I should adjourn these five grievances because only Vice-Chair Albertyn has the jurisdiction to consider its arguments that the MOS precludes the Union and the Grievor from advancing the five grievances or alternatively that Grievance 432 is properly referred to him. - 5 - [5] I disagree with the Employer’s assertion that only Vice-Chair Albertyn has the jurisdiction to interpret the MOS. Rather, the issue is one of giving effect to the agreement of the parties as set out in the MOS. If the parties were to agree the MOS can be interpreted by myself, there can be little question that I would have jurisdiction to do so. Conversely, if this were truly a matter of jurisdiction, the parties could not clothe me with jurisdiction to interpret the MOS even if they agreed that I should. [6] The issue before me, however, is not the proper interpretation of the MOS. Nor do I exercise a gate keeping function on the ability of the Employer to bring a motion before Vice-Chair Albertyn under the MOS entered into with respect to the eleven original grievances to stay all or some of the five grievances before me. Rather, the issue is whether I should adjourn any of the five grievances before me until the Employer can bring such a motion. The Employer can bring such a motion whether or not I grant the adjournment. [7] As argued by counsel for the Union, this Board should be sensitive to issues of delay. Further, the onus is on the party seeking a contested adjournment to demonstrate that the adjournment is warranted. [8] For the purposes of this motion, I assume that the Employer intends to bring the motion before Vice Chair Albertyn and is seeking to have such a motion scheduled as expeditiously as possible. I also note that there are no other hearing dates scheduled at present for the five grievances before me. Therefore, at this juncture at least, granting an adjournment would not give rise to delay. [9] I turn to the question of whether the Employer has demonstrated that an adjournment is warranted. In my view, noting again that the Employer may bring the motion whether or not I grant the adjournment, this requires that I consider the MOS to see if there appears to be a strong arguable case that a motion before Vice Chair Albertyn would succeed. [10] Grievance 432 appears to me to relate to the actions of Ms. Jones in attempting to implement the terms of the settlement. I am strengthened in that view by the fact that the particulars identified by the Union in relation to Grievance 432 appear to be essentially those already addressed by Vice-Chair Albertyn in a decision dated June 18, 2013. In that decision, Vice-Chair Albertyn addressed a motion by the Union to have the MOS set aside on the basis of fundamental breach as a result of these actions by Ms. Jones. At paragraph 2 of that decision, Vice-Chair Albertyn noted the MOS provided he was seized for the purposes of interpretation and implementation of the MOS and characterized the issue before him as a dispute regarding implementation. [11] The Union argues that Grievance 432 is concerned with whether Ms. Jones, and the Employer, have breached the duty to accommodate the Grievor’s disability. This duty, the Union argues, comes from the Code, not the MOS. Therefore, the Union argues, I have jurisdiction to address the matter. As I have already noted, in - 6 - my view this is not an issue of jurisdiction. Rather, it is a matter of giving effect to the parties’ agreement. It may well be that the actions in question may be characterized as engaging the duty to accommodate. However, they appear to me to have been undertaken as part of the process of implementing the MOS. The parties agreed that issues with respect to the implementation of the MOS would be referred to Vice-Chair Albertyn. Presumably, it is, or was, open to the Union to argue before Vice-Chair Albertyn that in implementing the MOS the Employer (or Ms. Jones on its behalf) breached the duty to accommodate under the Code. [12] Nor do I find OLBEU (Robinson) v. Ontario (Liquor Control Board of Ontario), (2006) 148 LAC (4th) 370 (Carrier) of assistance. In that case, the parties had entered into a settlement of an earlier grievance by the spouse of the grievor which provided for his transfer to a different store. As a result of that transfer of her spouse, the employer in turn transferred the grievor. The grievor argued that this transfer on the basis of her marital status constituted a breach of the Code. The employer brought a preliminary motion for the dismissal of the grievance on the basis that the settlement of her spouse’s grievance precluded her from advancing her own grievance. Arbitrator Carrier, sitting as a Vice-Chair of this Board, noted that it was not possible to contract out of the Code and dismissed the employer’s motion. However, the issue before me is not whether the preclusion of Grievance 432 by the MOS would constitute an impermissible attempt to contract out of the Code. Rather, the issue is whether I should adjourn Grievance 432 pending a timely motion by the Employer to Vice-Chair Albertyn. [13] Accordingly, in my view it is appropriate to adjourn the proceedings in Grievance 432 pending a determination by Vice-Chair Albertyn. I also note that in his decision dated June 18, 2013, Vice-Chair Albertyn dismissed the Union’s motion. It may be, therefore, that the matters raised by Grievance 432 have already been determined and may not be litigated again. However, as that was not argued before me, that is a matter best determined by Vice-Chair Albertyn. [14] Grievances 433-436 do rely in large part, although not entirely, on facts and events which pre-date the signing of the MOS. The Employer’s argument is that the MOS precludes any grievances with respect to facts that existed at the time of the execution of the MOS. This temporal restriction argument turns in essence on the third recital in the MOS: “WHEREAS the Parties wish to fully and finally resolve all of these employment related disputes”. [15] The Union argues that the MOS cannot be so broadly construed. It notes that the fourth recital states that the settlement is made “on the following terms”. The terms themselves do not support the expansive interpretation offered by the Employer. Paragraph 2 calls for the withdrawal only of subsisting grievances. Paragraph 3 discontinues only the Grievor’s then subsisting WDHP complaint. The release language in Paragraph 6 is limited to the grievances and “circumstances or facts leading up to the grievances” and is further limited, at least in some respects, to claims “of which the Grievor is currently aware.” - 7 - [16] Having regard to the arguments advanced by the Union, in my view the Employer’s temporal restriction approach is not a strong arguable case. I am not, therefore, prepared to adjourn Grievances 433-436 on the basis of the argument made before me. [17] It may well be that Grievances 433-436 are based on circumstances or facts leading up to the eleven grievances settled by the MOS, and, if required, that the Grievor was aware of those circumstances or facts at the time that he entered into the MOS. I am unable to say, as other than the MOS I was provided with no details whatsoever as to the eleven earlier grievances. If that is the case, or arguably so, then I would hope that the Employer would proceed with its motion to Vice-Chair Albertyn. There will be little to be gained in proceeding with Grievances 433-436 only to have it become apparent at some later date that one or more of them was barred by the MOS. [18] For all of the foregoing reasons, the Employer’s motion for adjournment is granted with respect to Grievance 432, but denied with respect to Grievances 433-436. Dated at Toronto, Ontario this 29th day of August 2016. Ian Anderson, Vice Chair