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HomeMy WebLinkAbout2004-0083.Fletcher.06-08-23 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2004-0083, 2004-0084, 2004-2607, 2004-2608, 2004-2609, 2004-2610 UNION# 2003-0248-0183, 2004-0248-0006, 2004-0248-0098, 2004-0248-0099, 2004-0248-0100, 2004-0248-0101 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fletcher) Union - and - The Crown in Right of Ontario (Ministry Community Safety and Correctional Services) Employer BEFORE Deborah J. D. Leighton Vice-Chair FOR THE UNION Gavin Leeb Barrister and Solicitor FOR THE EMPLOYER Janice Campbell Counsel Ministry of Government Services HEARING June 23, 2006. 2 Decision Ms. Tammy Fletcher, a correctional officer (CO) at Hamilton Wentworth Detention Centre, currently has six grievances befo re the board. The first, filed on February 15, 2004, alleges that she has suffered discrimination and harassment in her workplace, contrary to the collective agreement, the policies of the employer and th e Human Rights Code. Subsequent grievances include specific complaints about the investig ation of a WDHP complaint, shift schedule changes and a poisoned workplace, and reiterate the discrimination and harassment allegations. The last of these grievances was filed on Septem ber 1, 2004. A number of preliminary issues are outstanding between the parties, including 1) whether grievances filed after September 1, 2004 should be consolidated with the grievances be fore me; 2) whether the union?s particulars requested by the employer are sufficient; 3) wh ether the scope of the evidence should include evidence of an incident which was the subject matter of minutes of settlement; and 4) an outstanding request by the union for disclosure of documents. The parties indicated that they might be able to resolve all but the scope of the evidence. I was also advised that other issues might be raised at the next hearing day. These relate to timeliness and other procedural issues with regard to some of the grievances. This decision addresses the scope of evidence issue only. The union seeks to adduce evidence of an incident, which occurred on the picket line during the 2002 OPSEU strike. Ms. Fletcher filed three (3) grievances relating to the incident and a subsequent transfer to another institution, and these grievances were settled by me morandum of settlement on December 2, 2002. The purpose of this evidence, according to Gavin L eeb, counsel for the union, is to show that the incident and the grievor?s complaint about it ar e the impetus of the alleged discrimination and harassment that the grievor suffered when she returned to the workplace in March 2003, which she alleges continues to this day. The evidence is therefore necessary for the context of the case. The employer opposes the admission of this evidence. Counsel for the employer, Janice Campbell, contends that the proposed evidence is the subject matter of a memorandum of settlement, which is final and binding on the parties. 3 THE EMPLOYER?S SUBMISSION The employer objects to the introduction of this evidence primarily because it was the subject of a grievance settlement and because it would viol ate the return to work protocol signed by the government and the union after the 2002 OPSEU strike. Counsel for the employer stated that the December 2, 2002 memorandum of settlement re solved three (3) grievances filed by Ms. Fletcher on June 4, 2002. The first one alleged: The grievor has suffered differential treatment in regards to the application of the employer?s zero tolerance for viol ence in the workplace policy. The second grievance alleged: The grievor was transferred to the Niagara Detention Centre despite having completed a job trade to the HWDC. The transfer is retaliatio n against the grievor for filing a criminal charge against a HW DC Operational Manager. The transfer is contrary to the provincial and local return to work protocol. The third grievance alleged: On April 26 the grievor was assaulted by an HWDC employee. This resulted in the filing of a criminal charge. The em ployer has refused to remove the charged employee from duty at the HWDC in spite of its policy of zero tolerance for violence in the workplace. 4 The grievor sought various remedies including full redress. In minutes of settlement dated December 2, 2002 the parties agreed to ?full and final settlement of these grievances, on a without precedence, without prejudice basis ?? Clause 10 of the Memorandum provided specifically: Should the accused managers be found guilty, this settlement does not preclude Ms. Fletcher from filing a new grievance w ith respect to her return to work. Counsel for the employer argued that no matters, incidents or events up until the signing of the memorandum of settlement on December 2 should be permitted in evidence before me. She argued that it was the intent of the parties to resolve all the issues of the 2002 grievances. Ms. Campbell argued further that allowing the union to put evidence in with regard to the alleged incidents on the picket line would undermine the settlement process. An important labour relations principle was at stake and that there must be a respect for the finality of a memorandum of settlement. She argued further that in balancing the competing interests between the parties the balance favours the employer in this case. In summary, counsel argued that this eviden ce should not be admissible because the parties had agreed to full and final settlement with regard to the issues alleged in these grievances. She argued further that it would lengthen the hearing and it might require adverse findings against the employer on incidents that had already been resolv ed by the minutes of settlement. Finally, she argued that it would undermine the parties? confidence in the settleme nt process in the future. In the alternative, counsel argued that if the board was to allow the evidence it should only be for the purpose of establishing a pattern of discrimination. She also noted that there was an ongoing civil action on the issues raised by the alleged assault on the picket line. 5 Counsel relied on the following cas es in support of her submission: OPSEU (Dale et al) and Ministry of Health and Long Term Care (2002) GSB 2000-1314 (Abramsky); OPSEU (Waraich) and Ministry of Labour (2004) GSB 2003-0187 (Watters); Re Hotel Dieu Grace Hospital and th ONA 62 L.A.C. (4) 64 (Picher). THE UNION?S SUBMISSION Counsel for the union argued that the board has full discretion to determine what evidence it will allow in the proceedings. He argued that relevancy is paramount and that there is no absolute time limit to evidence that is admissible. In bala ncing the interests of the parties he noted that the board?s jurisprudence indicates a three year rule ? that is, the board has permitted grievors to put evidence in to establish a pa ttern of harassment for three years before the grievance was filed where the allegations were of ongoing harassment. He argued that since Ms. Fletcher filed the grievances in December of 2003, evidence beginning in 2000 would be appropriate. Mr. Leeb noted that the board has been consistent in excluding evidence that pertains to allegations that were the subject of minutes of settlement, but he argued that I should make an exception in this case. The exception should be made because of the nature of the claim, the nature of the wording of the settlement, and because of the ongoing civil suit and the result of the grievor?s claim at the Criminal Injuries Compensa tion Board. With regard to the nature of the grievance, counsel argued that the evidence of what happened on the picket line is relevant to the matters before the board for the simple reason that these grievances relate to what happened to the grievor after she complained about the manager?s alleged assault. Counsel argued that one of the persons persecuting the grievor is the spouse of this manager. The grievances arise because 6 the employer failed to take corrective action and stop the persecution. Thus there is no question in counsel?s view that the eviden ce is relevant. Mr. Leeb argued that the employer should not be able to shield itself from its own misconduct wi th the minutes of settlement ? to prevent the union from showing that the employer has not done anything to prevent further harassment. Mr. Leeb argued further that the facts before me are unique, and that Ms. Fletcher is, in effect, being persecuted for what was settled. He also argued that there was no clear release clause: clause 10 permitted the grievor to file a grievance w ith regard to return to work if the managers were found criminally liable. Counsel also emph asized that the Criminal Injuries Compensation Board had awarded the grievor $4000.00 in her application before them. He also noted that a civil suit was still outstanding a nd, therefore, there could be no prejudice to the employer in that there should not be any lost documents or memory problems. Counsel noted that the employer said nothing about an inability to provide evid ence with regard to the alleged incidents on the picket line, which is the test of true prejudice. Counsel argued that the real issue before me was whether the employer can hide behind a memorandum of settlement in the circumstances where someone is allegedly re-victimised after the settlement. In support of his submission, counsel for the union relied on UFCW and Comstock Funeral Home Ltd. (1981) OLRB REP. December. 1755; OPSEU (Ranger) and Ministry of Community Safety and Correctional Services (2005) GSB 2002-2375 (Leighton); OPSEU (Grinius) and Ministry of Citizenship (1992) GSB 1989-1495 (Fisher); OPSEU and Ministry of Public Safety and Security (Patterson et al) (2003) GSB 2001-0925 (et al.). 7 DECISION The issue before me is whether evidence of even ts that are the subject matter of a memorandum of settlement between the parties is admissible. Ms. Fletcher filed a grievance about an alleged incident on the picket line during the OPSEU st rike in 2002, and alleged that the employer had not dealt with it properly. These matters were settled on December 2, 2002. However, the union argues that I must allow the evidence because it is relevant and necessary to provide context of what the grievor alleges now in the six (6) grieva nces before me ? that because she grieved about the incident on the picket line, she has been hara ssed by fellow workers since her return to work in March of 2003. As counsel for the union noted, I have the discretion to allow all relevant evidence. The rules of evidence do not apply to GSB hearings. However, I am guided by the jurisprudence of the board. For the sake of consistency, it is well established that this board follows previous decisions that are on point. And the board has consistently decided to exclude evidence that relates to earlier settled grievances. In a thorough review of the board?s jurisprudence in Dale et al., Vice Chair Abramsky stated, in support of her d ecision not to allow evidence of a matter that had been settled: The GSB has long recognized the critical importance of settlements and their enforcement. In OPSEU (Union Grievance) and Ministry of Natural Resources/Management Board of Cabinet, GSB No. 1526/91 (Kaplan, Vice-Chair), the Board referred to the ?[s]anctity of [s]ettlements?, concluding at p. 31 that ?[I] t is absolutely essential that the Board give e ffect to final settlements reached between the parties.? 8 Vice-Chair Abramsky went on to emphasi ze as previous case law had held: Once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise. Vice Chair Watters relied on the reasoning in Dale et al. when he also precluded evidence of matters that were the subject of settlement, reaching his decision ?in larg e part, to ensure and promote the sanctity of final settlements.? The union does not dispute that the memorandum of settlement signed December 2, 2002 resolved the grievances pertaining to the events on the picket line and the employer?s actions up until the date of the three settled grievances (filed June 4, 2002). Nor does the union take issue with the established jurisprudence of the board th at settlements must be honoured and the events underlying them should not come back in anothe r ?guise?. However, the union urged me to make an exception to the well-established jurispr udence of this board and to allow the evidence primarily because of the nature of the case, wh ich alleges a pattern of harassment arising from the date of the grievance. Having carefully considered the submissions of th e parties and the case law put before me I am not persuaded that I should make an exception here and allow this evidence. There must be exceptional circumstances before it would be reasonable or proper to allow this evidence. I am not convinced that because of the nature of this case it is unique or exceptional. The employer must be able to rely on a settlement reached in good faith that compensated the grievor for losses. The union and the grievor agreed as a term of the settlement to withdraw the three grievances and that the settlement was a full a nd final agreement of the complaints. Nothing on the face of the document contradicts those terms. Clause 10 does not effect the agreement that 9 the case was fully settled. That clause permits the grievor to launch a fresh grievance about her ?return to work,? if certain managers were found guilty. It is very specific. The union contends that the grievor was harassed because she filed the June 4, 2002 grievances and seeks to show the pattern of harassment. If there is evid ence to prove that allegation, it would be admissible after the date of the grievance. As Vice-Chair Watters noted in Waraich:?It is only the evidence which led to the grievance which is settled which can not be called in a subsequent new grievance.? As I noted in Ranger, Vice-Chair Watters made it clear that he was allowing evidence after the date of th e filing of the settled grievance: In excluding the evidence, Vice-Chair Watters made it clear that it was not evidence as of the date of the minutes of settlement, but rather it was the evidence alleged as the basis of the grievance.The evidence after the grievance was filed was admissible. I agree that if evidence is to be excluded because the events have been the subject of a settlement, then it is the date of the grievance which provides the bright light, not the settlement date. Thus, I am not persuaded by the employer?s s ubmission that evidence to the date of the memorandum of settlement should be excluded in this case. Counsel for the union also argued that the employer should not be allowed to shield itself from wrongdoing with a memorandum of settlement. To be clear there was no evidence that the employer had acted in bad faith or otherwise im properly in settling the grievance in December 2002. The grievor returned to work in March 2003. According to the union, this is when the grievor began to experience harassment. What ha ppened on the picket line is not an issue before me ? it is what happened after the grievances were filed and after the grievor returned to work which, according to the union, is ongoing harassmen t of the grievor. Further, the union argued 10 that I have to hear the evidence of what occurred on the picket line because of WDHP investigation refers to the incident. However, the WDHP investigation is not about the picket line incident, it is about the grie vor?s allegations of harassment after returning to work. The reference to the picket line incident is because th e grievor?s view is that the grievance about it led to the harassment. Neither of these arguments convinces me to make an exception to the principle that settlements must be honoured. Finally, I note that a finding of the Criminal Injuries Compensation Board can have no bearing on the i ssue of whether evidence of settled matters between the parties should be admitted. It is important to note that the June 4, 2002 grievances are in evidence before me. Therefore, while I am not prepared to hear the evidence underlying these grievances, they are the starting point of the current grievances before me. Thus having carefully considered the cases and th e submissions of the parties and for the reasons noted above, I have concluded that the evidence of what occurred on the picket line and to the date of the original grievances is not admi ssible because this was the subject matter of a memorandum of settlement dated December 2, 2002. It is vital to the ongoing labour relations between these parties that the board respect the sanctity of the memorandum of settlement as Vice -Chair Knopf said in Landry King, cited in both Dale et al. and Waraich: The board wishes to do everything possible to foster and honour 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. 11 For all these reasons the motion of the employe r to exclude the evidence of the June 4, 2002 grievances is hereby granted. Evidence after that date may be admissible. rd Dated at Toronto this 23 day of August, 2006. D.J.D. Leighton Vice-Chair