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Home My WebLink About1993-1699.Jolette.94-04-11 .;.. " I ." ONTARIO [MPL OYES DE LA ~OUr:;ONNE ... CROWN EMPLOYEES DEL.ONTARIO 1111 GRIEVANCE CpMMISSION DE . SETTLEMENT RE'GLEMENT BOARD DES GRIEFS ~ 180 DUNDAS STREE'T WEST SUITE 2100, T..ORONTO, ONTARIO. M5G lZ8 TELEPHONEITELEPHONE(4 16) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100. TORONTO (ONTARIO) M5G IZ8 FACSIMILE ITELECOPIE (416) 326-1396 1699/93 IN THE MATTER OF AN ARBITRATION Under THB CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN' I OPSEU (Jolette) Grievor - and - The Crown ~n Right of ontario (Ministry of Natural Resources) Employer BEFORE w. Kaplan Vice-Chairperson ~ FOR THE S. Andrews GRIEVOR Grievance Officer Ontario'public Service Employees Union - FOR THE C. Foster EMPLOYER Staff Relations Advisor Ministry of Natural Resources -HEARING March 31, 1994 ( \ , ~ . -- z ~> . Introduction On October 8, 1992, a representative of management, a representative of the union, and the grievor signed a Memorandum of Settlement. The terms and conditions of this settlement are as follows In the matter of the grievance of Robert Jolette dated 15 July 1992, alleging that "I am not being compensated properly" The parties have agreed to the following settlement 1 It is understood that this agreement -is full and final i settlement of the above grievance, and or all matters arising out of this grievance and that this settlement is ./ made without precedent or prejudice 2 The employer agrees to compensate the grievor for the, additional 3 3/4 hours per week, associated with the 40 hour per wee~ schedule of his new classification ie. R.T 3 Therefore, his weekly salary will increase accordingly .ie $875 20 per week. ( 3 The Union and the grievor agr.ee to withdraw the grievance As agreed, the union and the grievor withdrew the grievance For its part, the employer initially honoured the terms of the Memorandum of Settlement. On July 13, 1993 it advised the grievor that it would be necessary to change one of the settlement terms, that relating to the grievor's wage rate, effective September 1, 1993 In the result, the instant grievance was filed The parties prepared and submitted a jointly prepared statement of fact, (and this statement also incorporates a number of relevant exhibits) The final paragraph of that statement is as follows "The parties agree that I I ~ . ... 3 this dispute centres on whether the Ministry should be bound to the Memorandum of Settlement" This case proceeded before an expedited panel of the-Board, at which time both parties / were given the opportunity to make submissions In brief, Mr I I Andrews, on behalf of the Union, argued that case was a simple one The parties entered into a simple and straightforward agreement for the .settlement of a grievance That settlement was properly signed and, for a time, implemented After more than eight months the employer unilaterally announced that it no longer intended to abide ,by the terms of the agreement, and when it did, another grievance was filed taking issue with the breach Mr Andrews argued that the employer was bound by the terms of the agreement, and that I should issue a declaration to that e,ffect. Mr Foster, on behalf of the employer, conceded that the employer was not abiding by the terms of the October 8, 1992 Memorandum of Settlement, but took the position that the Board had the jurisdiction, if it wished, to set aside the terms of a settlement reached between the parties where there were ""compelling reasons for it tq do so And Mr Foster argued that this was such a case In support of this position, Mr Foster argued that the settlement was contrary to the terms of the Collective Agreement, that the settlement was based on a mistake and misunderstanding, that the "- settlement effectively provided for the negotiation of individual terms and conditions of employment contrary to governing principles of labour law, that the settiement created inequities as persons in like positions to that of the grievor were not receiving similar treatment, and that the long-term effects of the settlement on the grievor were potentially negative as the specific provisions of that settlement may, in the future, deprive the \ / ~ 4 ... ..! grievor of increases In wages and benefIts Employer counsel asked th~t I declare the Memorandqm of Settlement null and void, and put the grievor In the position he would have been in but for the settlement, that is allow him to proceed through the grievance procedure and ultimately to arbitration with respect to his July 15, 1992 grievance \ Both Mr Andrews and Mr Foster referred to various cases in support of their positions including Ross 82/77 (Adams), Landry-King 1593/84 (Knoph), Lee 103/85 (Samuels), Haley 438/85 (Springate), Vinall et al 1270/86 (Gray), Neely and Stewart 2465/87 (Wilson) Coubrough/Sin'isalo 3018/90 (Gorsky), Edgett et al 2476/90 (Dissanayake), Baird et al 1644/91 (Kirkwood), and St Clair College and OPSEU (unreported decision of Shime dated July 13, 1992). ~ Decision ) Having carefully considered the evidence and submissions of the parties, J am of the view that this grievance must succeed Assuming for the sake of argument that I did have the jurisdiction to declare the Memorandum of - Settlement n~1I and void, this is not, in my view, an. appropriate case to exercise that jurisdiction 10 Landry-King, supra, the board held, that settlements are a crucial element In labour relations i - This Board wishes to do everything possible to foster and ) honour settlements .reached by parties Once. settlements . . \ are achieved, parties mList feel confident that they can rely upon them. OtherWIse, there would be no incentive for the parties to eVen attempt to try to settle matters. Unless there is a compelling reason why a settlement, ~ ) . ;- . ,. ., 5 ante obtained, cannot be honoured by the parties, this Board $hould not even attempt to Interfere with the settlement .(at 8-9) - ~ In Edgett et ai, supra, the Hoard held, following an extensive review of I relevant cases, that: Those policy considerations supporting the need to uphold the final and binding nature of gnevance settlements recognized by private arbitrators and the Ontario Labour Relations Board, apply with equal vigour \ \ and force in proceedings before this Board The purpose of the pre-arbitration grievance procedure under the collective agreement is to provide the parties an 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 ~ward handed doWn by a third party If the efficacy of a settlement so reached is to be maintained, the .parties must be held to their agreement. (at 1 0--1" ) The Memorandum of Settlement in this case could not be more clear It was signed by both parties and the grievor, and it was explicitly intended to be a full and final settlement of the matters in dispute It is generally accepted J that the Board ,has the power to enforce' settlements, and that in the, process of doing so, the Board should give effect to the agreement of the r ) parties without, save in exceptional circumstances, going behind the terms of the settlement with a view to assessing the propriety of that settlement. In Vinall et aI, supra, the Board held The enforcejabJlity of a grievance settlement cannot depend on whether the terms of the settlement reflect what an arbitrator would have done or could have done in response to the original grievance Nor can it depend on whether it would have been within an arbitratdr's - - 6 .~ i jurisdiction to impose the terms which the parties incorporated into the settlement Limitmg the enforceability of settlements m those ways would effectively negate one of the considerable attractions of ,- dispute resolution by negotiated settlement - that the parties are not confined, as an arbitrator would be, in defining either the scope of the problem they wish to resolve or the nature of an appropriate response to it. Similarly, the enforceability of 'a gnevance settlement cannot depend on whether its terms coulq or would have been the subject or result of bargaining for a collective agreement. If settlements are to. be encouraged, any lawful provision of a settlement agreement must be enforceable, and enforceable in the same forum as any other such provision (at 14) ). Obviously, all' of these decisions are of direct relevance to. the instant case , While arbitration bc;>ards have, in tbe cas$ of ambiguous settlements, \ \ i attempted to resolve the ambiguity in order to give effect to the deal the parties have reached, this is clearly not such a case as the language of the Memorandum of Settlement is crystal cl~ar at1d conceded by the' employer as such In the instant case, I was specifically requested by (the parties to decide whether th.e Ministry was bound by the Memorandum of Settlement. There IS, In my view, given the jurisprudence ~nd given the specific issue that I was asked to address, no basis to interfere with the agreement the p~rties have reached f In conclusion, the grievance is allowed The employer is directed to honour the terms of the October 8, 1992 Memorandum of Settlement. It is also directed to compensate the grievor for all wages and benefits lost as a - 7 J ~ {.' result of its unilateral decision to resile from Its agreement. I remain seized with respect to the implementation of this award DATED at Toronto this 11 thday of Apr il 1994 I//~ I 1/ ./..f ---------------- William Kaplan Vice-Chairperson / i ! - ( ) , \ ~ \