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HomeMy WebLinkAbout1998-1749.Gordon.02-03-07 Decision ~~~ om~o EA1PLOYES DE LA COURONNE _QJ_L i~~i~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILEITELECOPIE. (416) 326-1396 GSB#1749/98, 1750/98, 0129/98, 0276/99 UNION# 99A133, 99A134, 99C136, 99C340 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gordon) Grievor -and- The Crown In Right of Ontario (Ministry of Correctional Services) Employer BEFORE Graeme H McKechnie Vice-Chair FOR THE GRIEVOR John Brewln Counsel Ryder Wright Boyle & Doyle Barnsters & Solicitors FOR THE EMPLOYER Carol Ann Witt Counsel Legal Services Branch Management Board Secretariat HEARING November 15, 2001 2 DECISION ThIS IS a gnevance allegIng that the Employer has breached a Memorandum of Settlement dated October 13 2000 settlIng four gnevances concernIng dISCnmInatIOn and harassment of the gnevor The Umon, In ItS statement of the case, alleges that dunng a medIatIOn seSSIOn whIch led to the settlement of the gnevances, the gnevor was gIven an assurance, by the Employer that he would not be reqUIred to work wIth a certaIn IndIVIdual In management. It IS the Umon's posItIOn that, based on that statement, the gnevor and the Umon accepted the settlement that was under dIscussIOn. Subsequent to the settlement, the Umon alleges that the gnevor was reqUIred to report to the aforementIOned management officIal The Umon dIrects the Board to Item 8 of the Memorandum of Settlement whIch states as follows "The partIes agree that Vice-Chair McKechme shall remaIn seIzed to deal wIth any Issues regardIng the ImplementatIOn or InterpretatIOn of thIS Memorandum of Settlement." The Employer raised a prelImInary obJectIOn based on the JunsdIctIOn of the Board to hear the Umon's allegatIOn. It IS the Employer's argument that JunsdIctIOn IS lImIted to the aforementIOned paragraph and provIdes only that I may deal wIth "ImplementatIOn or InterpretatIOn" and that the Umon has raised a new Issue, whIch IS contact WIth a supervIsor It IS the Employer's posItIOn that whether or not the Issue of the gnevor's reportIng relatIOnshIp was dIscussed dunng medIatIOn, that Issue became Irrelevant when the memorandum of settlement was sIgned contaInIng no reference to that reportIng relatIOnshIp Because there IS no mentIOn of the reportIng relatIOnshIp In the settlement memorandum, the Board IS wIthout JunsdIctIOn to InqUIre Into any statements made dunng mediatIOn. The Employer referred the Board to re Zehrs Markets and Retail Clerks Union Local 1977(1984) 14 L.AC (3d) 379 (Barton) Re Domtar Sonoco Containers and International WoocMorkers-Canada, Local 1-1000 (1992) 28 L.AC (4th) 11 (Thorne) and re COlporation of the town of Espanola and Canadian Union of Public Employees Local 534 (1997) 61 L.AC (4th) 149 (Marcotte) 3 The Employer revIewed each of the terms of the Memorandum of Settlement. Item 1 provIdes for payment; Item 2 provIdes that the payment represents "full and final settlement of the four above-lIsted gnevances" Item 3 IndIcates that the InVestIgatIOn file IS to be closed and not reopened nor referred to Item 4 IndIcates that any reference to the InVestIgatIOn file wIll be removed from gnevor's personnel file and that the InVestIgatIOn file IS to be sealed and destroyed In accordance wIth government polIcy Item 5 states that the gnevances are wIthdrawn, Item 6 states that the partIes would not dIsclose the terms of the memorandum of settlement; Item 7 states that the gnevor understood the settlement and was fully and fairly represented by hIS umon and finally Item 8 IS as stated above The Employer argues that the Board cannot go beyond the terms of agreement and can only reVIew ItS terms to ensure that they had been correctly Interpreted and fulfilled. Because the reportIng relatIOnshIp IS not mentIOned In any way In the Memorandum of Settlement, It IS the Employer's VIew that the Umon IS requestIng that a new InqUIry be undertaken and thIS would be Inappropnate and outsIde my JunsdIctIOn. In fact, the Employer argues a further gnevance has been filed by thIS gnevor relatIng to dISCnmInatIOn and harassment and IS proceedIng through the gnevance procedure whIch demonstrates that the gnevor has another opportumty to dISCUSS the very Issues about whIch he IS currently complaInIng. The Umon argues that the gnevance referred to by the Employer IS proceedIng to the Gnevance Settlement Board. As a result, the Employer should not obJect to the Umon's current request gIven that a heanng before the Gnevance Settlement Board wIll occur In any event. It IS the Umon's VIew that ItS pnmary concern IS to proceed wIth the gnevor's allegatIOns The Umon argues that It has returned to the Board pursuant to Item 8 of the Memorandum of Settlement on the basIs of fact, the nghts of the gnevor JunsdIctIOn and remedy With respect to facts, the Issue, In the Umon's VIew IS what the Employer said at the tIme of settlement. The Umon's VIew IS that, dunng medIatIOn, the gnevor vOIced hIS concern about the reportIng relatIOnshIp and was gIven an assurance by the Employer The gnevor relIed on that assurance In order to come to a settlement on the terms beIng proposed. 4 With respect to the gnevor's and Umon's nghts, the Issue turns on a promIse made In medIatIOn leadIng to the settlement whIch, In the Umon's VIew affects the gnevor's nghts under the collectIve agreement WIth respect to health and safety In the Umon' s VIew thIS In Itself provIdes JunsdIctIOn. It IS the Umon's argument that the Gnevance Settlement Board should be vIgIlant WIth respect to the mediatIOn process and where promIses are made dunng medIatIOn, whIch are Important to achIeve a settlement, the Integnty of the process should be maIntaIned by enforcIng those promIses The Umon argues that I should take a very broad VIew of Item 8 (supra) and that an ImplIed term of the settlement must be that I retaIn JunsdIctIOn under the doctnne of estoppel to enforce any promIses made dunng medIatIOn that have been broken. The Umon refers to Item 8 IndIcatIng that I remaIn seIzed to deal wIth any "Issues" whIch has a broader meamng than If the word "terms" was contaIned In the memorandum of settlement. In support of ItS arguments the Umon refers to re OPSEU (Burton et aT) and the Crown In Right of Ontano (452/90 602/90 615/90 617/90) (1991) DecIsIOn of Vice-Chair Stewart) and also to CanadIan Labour ArbItratIOn, Brown & Beatty wIth respect of the doctnne of estoppel The Umon argues that If a party makes a representatIOn fraudulently the representatIOn can be enforced and an agreement set aSIde Management representatIOn could also be careless or Indeed It could be Innocent mIsrepresentatIOn and In the latter case would not be enforceable It IS the Umon's VIew that the decIsIOn In the Instant sItuatIOn should be based on the doctnne of estoppel The Umon argues that the Employer's case law deals wIth sItuatIOns where one party resIles from a settlement; whereas, In the Instant sItuatIOn, the Issue IS one of InterpretatIOn of an Item WIthIn the settlement. In reply the Employer argued that all the gnevances wIth respect to the Instant gnevor were wIthdrawn and the only Issue before me today IS the Memorandum of Settlement. It IS the Employers' VIew that the Umon IS seekIng to raise a new Issue The Employer argues that acceptIng JunsdIctIOn In the Instant sItuatIOn would undercut the pnncIple of partIes settlIng dIsputes on theIr own terms 5 In re Zehrs a settlement was made and at page 380 the arbItrator states that: " once a gnevance IS settled, a further gnevance concernIng the same matter cannot be entertaIned, nor can the re-opemng of the ongInal gnevance " The arbItrator goes on to state "I have no doubt that If there IS a settlement, and If the terms of that settlement can be proved, my JunsdIctIOn In thIS matter IS lImIted to determInIng whether or not the company has abIded by the terms of the settlement." (p 381-2) In re Domtar the arbItrator states at page 19 "What the agreement dId do however was to restnct the scope of the reVIew of a board of arbItratIOn to the factual questIOn of whether the terms of the agreement had been breached" ThIS arbItratIOn followed the sIgmng of a document whIch reInstated the gnevor and was a settlement that was negotIated between the company and the umon pnor to proceedIng to arbItratIOn. In re Espanola, the arbItrator concurred wIth the two pnor awards (Zehrs and Domtar) and states In part as follows " where the partIes have settled a gnevance by way of agreed-up on-terms of settlement, an arbItrator should not Interfere wIth that settlement where It IS demonstrated that ItS terms have been fulfilled by the partIes Not only does such an approach encourage the partIes to settle dIsputes on terms acceptable to them, It also enhances theIr confidence In the arbItratIOn process as one whIch respects the partIes' agreements An exceptIOn, of course, would anse If the terms of settlement were In some way unlawful" (p 163) In re OPSEU (Burton et al) the Issue was a settlement reached dunng negotIatIOns on wages that left, what the Umon descnbed In the Instant case, a "loose end" and a dIfference arose wIth a respect to how a wage Increase should be calculated. In that case, the Gnevance Settlement Board used the doctnne of estoppel because "It IS clear that a representatIOn was made by Mr.McIlveen to the Umon that seasonal employees would receIve "the dIfference" between the Increase to be agreed upon between the partIes and the ultImate settlement In the OPS" (p 16) The Vice-Chair found that there was a detnmental relIance by the umon whIch was necessary to find that an estoppel had been establIshed. (p 17) 6 The case submItted by the Umon (re OPSEU) dIffers from the Instant sItuatIOn because that memorandum of settlement left In doubt how the wage Increase would, In fact, be calculated and the umon relIed on a representatIOn concernIng that calculatIOn to ItS detnment. In the Instant case, no such "loose end" was left. I agree wIth the Umon that the Integnty of the medIatIOn process must be maIntaIned. In the Instant sItuatIOn, the medIatIOn process took place, the Memorandum of Settlement was dIscussed In detaIl and at vanous tImes, counsel for the Umon and counsel for the Employer met to reVIew the terms and condItIOns of that settlement. The ImplementatIOn and InterpretatIOn of the Memorandum of Settlement IS a subJect that can be revIewed by the Gnevance Settlement Board. The Umon IS now askIng that I reVIew a promIse concermng a reportIng relatIOnshIp the vIOlatIOn of whIch has allegedly occurred folloWIng the acceptance and sIgmng of the memorandum by both partIes The Umon argued that I should define the word "Issues" In Item 8 (supra) very broadly With respect, I dIsagree One must read the Memorandum of Settlement, In partIcular Item 8 In ItS entIrety and no eVIdence was brought before me that Issues regardIng the ImplementatIOn or InterpretatIOn of thIS Memorandum of Settlement had been vIOlated. The gnevor's allegatIOn IS that the terms and condItIOns of the memorandum of settlement became acceptable to hIm because of an assurance made by the Employer With respect, If that assurance was cntIcal to the acceptance of thIS settlement, It should have been wntten Into the settlement as one of the Items No eVIdence was brought forward that the vanous Items In the settlement had not been Implemented and no eVIdence was brought forward that the Items, as stated In the settlement, had been Interpreted In vIOlatIOn of the plaInly stated words of the settlement. The Umon submItted a passage on the doctnne of estoppel as quoted In Brown & Beatty The authors pOInt out that " the essentIals of estoppel are a findIng that there was a representatIOn by words or conduct, whIch may Include sIlence, Intended to be relIed on by the party to whIch It 7 was dIrected, some relIance In the form of some actIOn or InactIOn, and detnment resultIng therefrom" (p.2-68) The present sItuatIOn, IS not one, In my respectful OpInIOn, In whIch a representatIOn was made by the Employer that led the gnevor to a conclusIOn that the nghts, as set forward In the Memorandum of Settlement, would not be followed. Further the Memorandum of Settlement contaInS no unfimshed busIness GIven that there IS no allegatIOn that the Employer has faIled to Implement any of the terms of the Memorandum of Settlement and gIven that there IS no mentIOn of the reportIng relatIOnshIp In the memorandum, I find that I am wIthout JunsdIctIOn to proceed wIth the Umon's gnevance and as a result, the gnevance IS dIsmIssed. Dated at Toronto thIS ih day of March, 2002 ~~. ~ ) >,t ,:~;'~J!<~~:~/ , ~ " A,:: L;~>:,_,!}~~~~f!"" ,',)} --.;r'~" ' ^ " Graeme H. McKechme Vice-Chair