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
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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.
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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