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HomeMy WebLinkAbout1999-1839.Schaefer.01-12-13 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~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 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1839/99 UNION# 00B063 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Schaefer) Grievor -and- The Crown In RIght of Ontano (Mimstry of TraInIng, Colleges and UmversItIes Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE GRIEVOR George Richards Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Len HatzIs Counsel Legal ServIces Branch Management Board Secretanat HEARING December 6 2001 2 AWARD At Issue IS whether the Mimstry has vIOlated the terms of the settlement agreement entered Into between the partIes on August 8 2000 The Mimstry raised a prelImInary motIOn to dIsmIss for lack of JunsdIctIOn. For the reasons set forth below I conclude that thIS dIspute must be dIsmIssed. Facts The gnevor had been In a temporary unclassIfied posItIOn WIth the Mimstry when her contract of employment was not renewed. On December 12, 1999 she gneved that non-renewal, allegIng a vIOlatIOn of ArtIcle 3 of the collectIve agreement. On August 8 2000 the partIes entered Into a settlement agreement that states, In pertInent part, as follows Whereas the Gnevor has filed a gnevance dated December 10 1999 and Whereas the gnevances are scheduled for medIatIOn/arbItratIOn for August 8 2000 The partIes agree to a full and final settlement of all outstandIng gnevances wIthout precedent or preJudIce and wIthout the admIssIOn of wrongdoIng by any party 1 The employer acknowledges that effectIve ImmedIately untIl December 1 2000 the gnevor shall have the nght to apply to all restncted competItIOns ongInatIng In the Mimstry of TraInIng, Colleges and UmversItIes for whIch the Gnevor would otherwIse be unable to apply 2 The gnevor shall be provIded wIth an eIght month contract ITO 2 unclassIfied posItIOn WIth the Mimstry of TraInIng, Colleges and UmversItIes' MissIssauga office begInmng December 1 2000 3 ThIS memorandum of settlement constItutes full and final settlement of any and all claims, gnevances, or actIOns whatsoever that the gnevor has or may have agaInst the Employer ItS representatIves, employees, and officIals whether under a collectIve agreement, statute (includIng but not lImIted to the 3 Employment Standards Act and/or Human Rights Code), regulatIOn, polIcy contract or law as a result of or ansIng out of the gnevance dated December 10 1999 (GSB No 1839/99) The gnevor hereby forever releases the Employer Its representatIves, employees, and officIals from all such claims, gnevances and actIOns 4 The partIes agree that the terms of thIS settlement shall remaIn confidentIal and shall not be commumcated by the gnevor to any other person except ImmedIate famIly Local 230 OPSEU ExecutIve or the RegIOnal OPSEU Staff Rep or as reqUIred by law 5 SubJect to complIance wIth the foregoIng, the gnevance shall be deemed to have been resolved and the gnevances shall be wIthdrawn by the umon and the employee 6 In the event of any Issues ansIng from the ImplementatIOn of thIS agreement the GSB and arbItrator RandI Abramsky shall remaIn seIzed. Shortly before thIS settlement agreement was reached, the Mimstry had posted for a full-tIme classIfied ITO 2 posItIOn In Sarma, Ontano WIth a cloSIng date of August 14 2000 No mentIOn of thIS posItIOn was made at the medIatIOn, whIch had dealt wIth temporary unclassIfied posItIOns AccordIng to the Umon, however ItS ultImate goal was to get the gnevor Into a classIfied posItIOn and It sought to do thIS by allowIng her to compete In competItIOns when they arose, IncludIng restncted ones The SamIa competItIOn was an open competItIOn, open to members of the publIc There were approxImately 100 applIcants, only 9 of whom were IntervIewed. The gnevor was not selected for an IntervIew It was the Umon's posItIOn, as set forth In an Apnl 9 2001 letter to counsel for the Mimstry that the Mimstry vIOlated the settlement by faIlIng to "gIve any reasonable consIderatIOn to the ments of her applIcatIOn for the Sarma posItIOn." The Umon 4 contended that the Sarma posItIOn should have been brought to the gnevor's attentIOn dunng the medIatIOn and that, at the least, she should have been granted an IntervIew for the posItIOn. Arguments of the Parties 1 The Ministry The Mimstry contends the wordIng of paragraph 1 of the settlement agreement IS clear and unambIguous and gIves the gnevor the "nght to apply to all restncted competItIOns ongInated In the Mimstry .for whIch the Gnevor would otherwIse be unable to apply" It submIts that there IS no allegatIOn that she was demed thIS nght In that the Sarma competItIOn was an open one not a restncted competItIOn. It contends that thIS settlement agreement IS unrelated to the Sarma competItIOn. The Mimstry asserts that SInce there IS no contentIOn that the settlement terms were vIOlated, the Board has no JunsdIctIOn to proceed to the ments The Mimstry contends that under the case law the partIes are bound to the clear language of a settlement agreement and cannot have the board rewnte It after the fact. In support It cItes to Gotfyt,ald and Ministry of the Attorney General (1998) PSGB/0127/96 (LeIghton) The Mimstry also asserts that the decIsIOn In OPSEU (Union Grievance) and Management Board Secretariate (2001), GSB No 0405/99 (Abramsky) IS dIstIngUIshable In that case, the board held that employees who accept paY-In-lIeu of 5 notIce under ArtIcle 20.2 3 and who are "elIgIble to apply for restncted competItIOns" for a penod of 24 months enJoyed a substantIve nght under the collectIve agreement, IncludIng the nght to have theIr applIcatIOn consIdered by the employer In good faith. The nght was not lImIted to "the lIteral abIlIty to apply" (Dec at p 17) The Mimstry argued that In that case It was undIsputed that the employees had the nght to apply to restncted competItIOns under ArtIcle 20 2 3 and the meamng of the provIsIOn was In questIOn, whereas here, It IS the terms of a settlement agreement whIch are In questIOn. It submIts that In a settlement agreement, the partIes are bound to the specIfic terms of the agreement. 2. The Union The Umon contends that under the settlement agreement and the board's decIsIOn In OPSEU (Union Grievance) supra, the gnevor was gIven the nght to apply to restncted competItIOns, whIch Includes the nght to have the employer consIder her applIcatIOn for a restncted competItIOn In good faith. WhIle acknowledgIng that paragraph 1 does not mentIOn open competItIOns, It argues that It should be Inferred to Include open competItIOns such as the SamIa one It submIts that the settlement agreement sought to treat the gnevor better than a member of the publIc and therefore by Inference, she should have the same nght to have her applIcatIOn for an open competItIOn be consIdered by the employer In good faith. 6 Decision In paragraph 6 of the settlement agreement, the partIes agreed that I would remaIn seIzed "[i]n the event of any Issues ansIng from the ImplementatIOn of thIS agreement. " ThIS board's JunsdIctIOn, therefore, IS lImIted to Issues ansIng from the ImplementatIOn of the settlement agreement. It does not flow from the collectIve agreement generally The partIes In thIS case dIspute the meamng of paragraph 1 of the settlement agreement. The Mimstry takes a lIteral InterpretatIOn - that the gnevor was gIven the nght to apply to restncted competItIOns In the Mimstry for whIch she would otherwIse, as a non-member of the OPS be unable to apply The Umon takes a broader InterpretatIOn - that It IS not only the nght to apply to restncted competItIOns that she was gIven, but the nght to be consIdered In good faith In any competItIOn for whIch she applIed. Even assumIng, wIthout decIdIng, that the nght to apply to restncted competItIOns In thIS settlement agreement Includes, as It dId In the OPSEU (Union Grievance) case, the nght to have one's applIcatIOn consIdered In good faith by the Employer thIS settlement agreement IS lImIted to restncted competItIOns It dId not say "any competItIOn, restncted or otherwIse" WhIle It may not have been deemed necessary to Include the nght to apply to open competItIOns sInce anyone may apply to them, the questIOn here IS whether the Employer vIOlated the terms of thIS settlement 7 agreement? Because the SarnIa competItIOn was an open one, It was not governed by thIS settlement agreement. I find the decIsIOn In Gotfyt,ald and Ministry of the Attorney General, supra, to be of assIstance In that case, the settlement agreement reqUIred the employer to pay the gnevor the sum of "$8000 less statutory deductIOns" The gnevor later argued that the payment ought to be treated as "servIce tIme related" whIch would Increase hIS pensIOnable servIce tIme The board dIsmIssed the matter statIng that "[t]he partIes are bound by the clear language of the settlement agreement. " It noted that nothIng In the agreement reqUIred the Mimstry to treat the payment as "servIce related tIme" It also noted that the partIes could have agreed that penSIOn contnbutIOns should be deducted or that the payment would extend the gnevor's last day of employment, but dId not. AccordIngly the board ruled that the polIcy consIderatIOns behInd gIVIng effect to settlement agreements reached by the partIes - to encourage settlements and aVOId the costs of arbItratIOn - applIed In that case In the same way the settlement agreement In thIS matter by ItS terms, IS lImIted to the nght to apply to restncted competItIOns It does not speak to open competItIOns, and It would be a very long stretch to Include such competItIOns WIthIn ItS scope The partIes are bound to the language used In the settlement agreement. In thIS case, even If that language IS Interpreted to Include the nght to have her applIcatIOns to restncted competItIOns consIdered In good faith, It does not pertaIn to open competItIOns as well 8 AccordIngly there IS no vIOlatIOn of the settlement agreement and thIS matter must be dIsmIssed. Issued at Toronto thIS 14th day of December 2001 1-1, 1.bnrn&l(j RandI H. Abramsky Vice-Chair