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HomeMy WebLinkAbout2001-0660.Young.04-01-23 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2001-0660 UNION# 01A734 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Y oung) Grievor - and - The Crown m RIght of Ontano (Mimstry of the Attorney General) Employer BEFORE RandI Abramsky Vice-Chair FOR THE UNION John Brewm Ryder Wnght Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Sean Kearney Counsel Management Board Secretanat HEARING July 7 November 13 December 4 2003 January 5 2003 2 DeCISIon The Mimstry alleges that the gnevor has breached the confidentIalIty provIsIOn contaIned In Minutes of Settlement dated September 19 2002 Paragraph 3 of the settlement states (3) The partIes agree that the terms of thIS settlement shall remaIn confidentIal and shall not be dIsclosed except as reqUIred by law or as reqUIred to Implement thIS settlement. In the event that thIS provIsIOn IS determIned to have been breached, Vice Chair Abramsky wIll have the authonty to determIne the appropnate remedy The gnevor demes that she told anyone the terms of the settlement or that she breached thIS provIsIOn. Facts 1 The September 19, 2002 Minutes of Settlement On February 15 2001 the gnevor Ms Young, filed a gnevance allegIng that a supervIsor ("S") "repeatedly harassed" her caUSIng her to go onto sIck leave In terms of relIef, she sought a vanety of thIngs, IncludIng a return to her contract posItIOn, return of all sIck credIts and lost Income as well as damages under the Human Rights Code On September 19 2002, a medIatIOn was held and Minutes of Settlement were entered Into The settlement was a relatIvely sImple and straightforward agreement. There were no admIssIOns of lIabIlIty or wrongdoIng. It was wIthout preJudIce or precedent, and there were three specIfic terms 1 The gnevor was to be paid the sum of $100000 as general, out-of-pocket expenses 2 The gnevor would receIve 5 75 attendance credIts 3 The terms of the settlement were to remaIn confidentIal There was also a wIthdrawal of the gnevance, a general release clause, and I was to remaIn seIzed. 3 Manager of Court OperatIOns for HamIlton, Cathy Hiuser attended the medIatIOn seSSIOn on behalf of the Mimstry and testIfied at the heanng. She testIfied that she had been reluctant to settle thIS gnevance SInce she felt that It had no ment. She would only do so wIth a strong confidentIalIty provIsIOn. She was concerned about the reputatIOn of "S" and wanted to ensure that any settlement would protect hIS reputatIOn and character She stated that "S" had to be convInced to settle thIS matter because he would not get to state hIS sIde of events She also testIfied that Ms Young had "breached confidentIalIty clauses" In the past, and she wanted to have some avenue of recourse If a breach occurred In thIS matter She agreed to the language set out In paragraph 3 of the Minutes of Settlement, wIth ItS uncommon second sentence That language In her VIew was added due to her concerns about confidentIalIty Ms Young testIfied that she understood that, under paragraph 3 of the settlement, she could not dIsclose the specIfic terms of the agreement. She dId not recall that management had a specIfic concern about confidentIalIty or why the last sentence of paragraph 3 was added. 2. The Alleged Breach of Confidentiality SupervIsor Court OperatIOns-HamIlton, Bette Jean Glassford, testIfied that at the end of the day on March 19 2003 she saw ElaIne Young who appeared to be very angry over a sItuatIOn InvolVIng two court employees, Jeanme Fazakas and Elena Sarno She stated that Ms Young said that "she was so Incensed that she couldn't talk about It." ThIS was confirmed by Ms Young as well Elena Sarno was one ofMs Glassford's employees whIle Ms Fazakas reported to another supervIsor Bnan Horracks 4 Ms Glassford then bnefly met wIth Mr Horrack's to learn more about the sItuatIOn. They had a bnef conversatIOn and Ms Glassford decIded that she would speak to Ms Sarno about the sItuatIOn the folloWIng mormng. The next day March 20 2003 Ms Glassford met wIth Ms Sarno She relayed her bnef InteractIOn wIth Ms Young and what she heard from Mr Horracks and asked her what was gOIng on wIth Jeame Fazakas Ms Glassford testIfied that Ms Sarno InsIsted that nothIng was gOIng on and that she belIeved that Ms Young had InstIgated the sItuatIOn because ElaIne was angry at her because she had coffee wIth an employee named Ron, wIth whom Ms Young had a bnef relatIOnshIp In the past. Ms Sarno then proceeded to gIve Ms Glassford "a lIttle background InformatIOn" about Ms Young. Ms Glassford stated that Ms Sarno told her that she was not sure If Ms Glassford was aware but at one tIme, ElaIne had laid a charge of sexual harassment agaInst "S" Ms Glassford was not aware of thIS Ms Sarno contInued that the heanngs In Toronto were qUIte the thIng, that "S" was "sweatIng buckets, nght through hIS ShIrt" and that Cathy Hiuser got her "knuckles rapped" at those heanngs because she dId not follow the rules She then added that whole sexual harassment matter was confidentIal although she could not recall the proper termInology for that. Shortly after theIr meetIng ended, Ms Sarno returned and told her that the phrase she had been tryIng to remember was a "gag order" Ms Glassford testIfied that she was "stunned, to say the least" and mortIfied for "S" She later advIsed "S" about thIS and she testIfied that he was "funous, shocked and very upset." Ms Glassford stated that Ms Sarno said that she had receIved thIS InfOrmatIOn from ElaIne Young. She told her that at the tIme they were fnendly and ElaIne would call her numerous tImes a day at work and at home 5 Ms Hiuser was away from the office on March 20 2003 and agaIn on March 21 On March 21 2003 both Ms Glassford and Mr Horracks called Ms Hiuser and advIsed her of the sItuatIOn between Jeame Fazakas and the dIsclosures of Ms Sarno Ms Hiuser testIfied that she was very upset when she learned about thIS and was concerned for "S" and hIS reputatIOn. She stated "I thought thIS would occur but I couldn't belIeve It dId." The folloWIng Monday March 24 2003 Ms Hiuser called a meetIng wIth Jeame Fazakas, Elena Sarno ElaIne Young, and supervIsors Glassford and Horracks In attendance The purpose of the meetIng was two-fold. FIrst, to sort out the conflIct between Ms Fazakas and Ms Sarno and second, to confirm what Ms Sarno had told Ms Glassford and to ask Ms Young about It. Both Ms Glassford and Ms Hiuser testIfied about thIS meetIng, and theIr recollectIOns were recorded In notes made shortly after the meetIng. Ms Sarno also confirmed what she said dunng thIS meetIng. There IS no dIspute between the partIes as to what took place dunng thIS meetIng. The meetIng began wIth Ms Fazakas and Ms Young statIng what, In theIr VIew occurred between Ms Fazakas and Ms Sarno some of whIch had been wItnessed by Ms Young. Ms Sarno demed makIng any derogatory comments or spreadIng rumours, as asserted by Ms Fazakas and Ms Young. Ms Fazakas and Ms Sarno were asked to leave, and Ms Hiuser met bnefly wIth Ms Young. Ms Fazakas was then InvIted back In, for further dIscussIOn. After she left, Ms Sarno returned to dISCUSS the dIscrepancIes between the two verSIOns of events Ms Young remaIned In the meetIng. 6 Ms Hiuser then asked Ms Sarno wIth ElaIne Young present, If It was true that she told Ms Glassford that "S" had a sexual harassment case filed agaInst hIm by Ms Young. Ms Sarno demed saYIng that she used the words "sexual harassment" but Ms Glassford confirmed that she dId. Ms Sarno responded that she dId not remember but meant "harassment." Ms Sarno then described how "S" had been "sweatIng buckets" at the heanng In Toronto so much so that hIS ShIrt became wet under the arms Ms Hiuser asked Ms Sarno who told her thIS InformatIOn, and she replIed "ElaIne" Ms Hiuser then turned to ElaIne, whom In her VIew looked "shocked" and asked what thIS was about, and Ms Young responded that she "dId not know anythIng about that. ThIS IS the first tIme I heard thIS" Ms Hiuser then asked Ms Sarno - dId ElaIne tell you thIS - and she responded "yes" and added that Ms Young told her she receIved a "four-figure" settlement but that next tIme she was gOIng to ask for "SIX figures." She added that Ms Young told her she had done the same thIng to another supervIsor "P" prevIOusly Ms Sarno said that Ms Young told her that Ms Hiuser got her "knuckles rapped" because she doesn't follow the rules, and that Ms Young used a tape recorder to record everythIng that was said In a gnevance InvolvIng MartIn TosOlan, Lynn Thompson, Joanne LeIgh and Ms Young. Ms Hiuser agaIn asked Ms Young about thIS, and she replIed that she knew nothIng about It. Ms Sarno then left the room, and Ms Hiuser questIOned Ms Young about her allegatIOns Ms Young restated that she knew nothIng about It and thIS was the first she had heard It. The meetIng then ended. The folloWIng day Ms Hiuser and Ms Glassford agaIn met wIth Ms Sarno Management had prepared a wntten statement contaInIng the assertIOns that Ms Sarno had made at the meetIng on March 24 Ms Sarno was asked to reVIew them, and to confirm them by sIgmng the 7 document. Most of the assertIOns Involved the dIspute wIth Ms Fazakas, but the last one dealt wIth her dIsclosure to Ms Glassford. It reads * you confirmed that It was true that you told Bette Jean Glassford on March 20 2003 that ["S"] had a sexual harassment case filed agaInst hIm by ElaIne You dId note that you dId not recall USIng the word "sexual" You also confirmed that ElaIne Young told you that ["S"] had been at the gnevance board and was sweatIng buckets So much so that hIS ShIrt was wet under the arms When asked who provIded you wIth thIS InformatIOn you replIed "ElaIne" You advIsed that ElaIne told you that she got a 4-figure settlement but next tIme was gOIng to ask for 6 figures You stated that she had done the same thIng to [P] You said that ElaIne told her that Cathy Hiuser had her "knuckles rapped" In Toronto because she had not handled thIngs properly and that ElaIne had used a tape recorder to record everythIng that was said In the matter InvolvIng MartIn TosOlan, Joanne LeIgh, Lynn Thompson and ElaIne You also advIsed that In the past ElaIne would call you 7 tImes per day and at home In the evemng provIdIng you wIth InfOrmatIOn. Ms Sarno sIgned thIS document, and added a number of addItIOnal pOInts Ms Sarno added that ElaIne had told her that she had followed Ms Hiuser Into the bathroom at the heanngs attemptIng to hear her talkIng to others about the heanng and that she would watch her facIal expressIOns She said that ElaIne had told her that she had used a tape recorder at GSB heanngs, but that the sound was muffled because It was In her pocket. She added that Ms Young told her that anyone could buy a tape recorder at Zeller's for $40 00 to $80 00 She repeated that ElaIne told her that Ms Hiuser repeatedly had her knuckles rapped and that [S] had sweated buckets at the heanngs After thIS meetIng, Ms Hiuser contacted Human Resources, and the matter was referred to counsel, leadIng to the present heanng. In terms of the dIspute between Ms Fazakas and Ms Sarno Ms Sarno was Issued a letter of counsel for Inappropnate behavIOur The Umon does not dIspute that Ms Sarno said these thIngs to management. It vehemently dIsputes that her dIsclosures, as they relate to the September 19 2002 settlement, came from Ms 8 Young. Instead, It asserts that Ms Sarno's dIsclosures about the settlement were a lucky or educated guess ObvIOusly there IS a sIgmficant Issue of credIbIlIty In thIS case Ms Sarno IS a Counter Clerk In the Enforcement Office at the SopInka Court House In HamIlton. Ms Sarno testIfied that she had been fnends wIth Ms Young SInce 1998 and that Ms Young would regularly call her both at work and at home about gnevances and work- related matters She was aware, In early 2001 that Ms Young Intended to file a gnevance agaInst "S" allegIng harassment although she never saw the actual gnevance She had been told thIS by Ms Young. At the heanng, she stated that she was aware that It was "harassment" that Ms Young was claimIng, not sexual harassment, and that If she said sexual harassment to Ms Glassford, she was mIstaken. She was aware of the dIfference between the two She was also aware that Ms Young was seekIng lost wages, credIts, and damages In the gnevance AccordIng to Ms Sarno Ms Young told her about "so many gnevances, thIS was Just another one" Ms Sarno's testImony vaned between beIng very certaIn and "fuzzy" about when she learned the terms of the settlement from Ms Young, but she remaIned adamant that It was Ms Young who dIsclosed the terms to her - repeatedly She ImtIally testIfied, on eXamInatIOn-In- chIef, that Ms Young called her at home on the day of the settlement and told her that although It was confidentIal and she shouldn't be tellIng her about It, she would tell her She said that Ms Young told her she receIved a "four-figure" settlement. On re-eXamInatIOn, she explaIned that thIS conversatIOn stuck out In her mInd because It was the only tIme that Ms Young had ever mentIOned a dollar figure On cross-eXamInatIOn, she could not recall the date of the settlement, or the month. She thought It occurred before the weddIng of Ms Young's daughter whIch took place on September 9 7 2002 She stated that Ms Young was "callIng me from the heanng all day on her cell phone" but then said that It "wasn't all day" but she belIeved that she dId receIve a call on the day of the settlement - one dunng the day and one later She admItted that she was "fuzzy" on the dates and tImes because there were so many calls and Ms Young often repeated herself She dId not take notes of these conversatIOns or keep a log of them. Ms Sarno testIfied that In the cell call, dunng the day from the heanng, ElaIne told her that It was gOIng well and she was gOIng to get a settlement. Later ElaIne advIsed her that she receIved a "four-figure" settlement. When asked, on cross-eXamInatIOn, If ElaIne mentIOned any other terms, Ms Sarno responded that "she suggested to me that she would go for some kInd of credIts, plus money for harassment. And that's what she receIved." ThIS last pOInt, unfortunately was not pIcked up on by eIther counsel (or me at the tIme) and Ms Sarno was not further questIOned on that testImony Counsel, on cross-eXamInatIOn, dId clanfy that theIr dIscussIOn on the cell phone was "what she was requestIng, not what she got" but my notes are clear that Ms Sarno testIfed that Ms Young "receIved" credIts plus money for harassment. Ms Sarno testIfied about a number of other thIngs Ms Young had told her about the harassment gnevance She said that Ms Young told her that [S] was sweatIng at the heanngs, and that she repeated It to her several tImes both In person and on the phone When It was suggested, on cross-eXamInatIOn, that It was another medIatIOn In HamIlton InvolvIng MartIn TosOlan, Lynn Thompson and ElaIne Young at whIch [S] had been sweatIng because It was very hot that day she demed that. She stated that "I belIeve per ElaIne that that gnevance related to the Tnal CoordInator posItIOn, and Involved a completely dIfferent gnevance " 10 AccordIng to Ms Sarno Ms Young told her that she had "charged [P] wIth sexual harassment." Ms Hiuser confirmed that In 1995 Ms Young had filed a harassment complaInt agaInst P whIch led to a WDHP InVestIgatIOn. She was not aware of the results of the InVestIgatIOn. She stated that the [P] matter was a "hIghly confidentIal and sensItIve matter" and that she had never heard anyone mentIOn It before IncludIng her DIrector In terms of the tape recorder Ms Sarno confirmed that she told Ms Hiuser and Ms Glassford that ElaIne had told her that she had taped heanngs and that ElaIne told her that one could buy a tape recorder at Zellers Department Store for $40 to $80 dollars When questIOned, on cross-eXamInatIOn, whether Ms Young had said that she "could buy" a tape recorder rather than "dId buy" Ms Sarno responded that "ElaIne told me she was In posseSSIOn of a tape recorder and that anyone could buy one at Zellers for $40 to $80 dollars" When It was suggested that It was not ElaIne who tape recorded a meetIng but another person, Ms Sarno said that was "Incorrect - ElaIne told me that she was In posseSSIOn of a tape recorder" There was a sIgmficant dIspute between Ms Sarno and Ms Young about when theIr fnendshIp ended. Ms Sarno ImtIally testIfied that It ended when Ms Young moved work locatIOns, whIch, In later testImony was determIned to be February 2002 Later Ms Sarno testIfied that It ended due to a number of factors - her mOVIng locatIOns, the Joke about Ron In regard to the weddIng, Ms Sarno's actually havIng coffee wIth Ron, and Ms Sarno's contInuIng faIlure to return Ms Young's calls and messages She testIfied that the last call she receIved from Ms Young was early In 2003 around the begInmng of March. She demed that the fnendshIp broke off because of the Joke about Ron and the weddIng, or that It broke off at that tIme 11 Ms Sarno testIfied that shortly before the weddIng, Ms Young questIOned her about whether or not she planned to attend the weddIng wIth Ron. Ms Sarno dId not recall ever tellIng anyone that, but that If she dId It "would have been a Joke" At the tIme she had been In a common law relatIOnshIp for mne years, and always Intended to take her husband to the weddIng. It was undIsputed that Ms Sarno was InvIted to the weddIng of Ms Young's daughter as were a number of work fnends It IS also undIsputed that she attended the weddIng wIth her common-law partner Gary She demed that thIS IncIdent ended her relatIOnshIp wIth Ms Young and stated that Ms Young contInued to call her after the weddIng. On cross-eXamInatIOn, Ms Sarno was closely questIOned about Ms Young's vanous posItIOns and locatIOns In the Court House Ms Sarno was somewhat famIlIar wIth Ms Young's vanous posItIOns and back-fillIng but she was not certaIn. She dId not know how long Ms Young was off work In early 2001 nor dId she know what Ms Young earned per hour or the number of hours she worked. Ms Young testIfied that although she had known Ms Sarno SInce 1991 they became fnendly In 1998 She could not recall, however If they had lunch or coffee from tIme-to-tIme, "maybe one tIme" She dId not socIalIze WIth her after work, but "we'd call each other" They would talk about many thIngs, "lIke wIth any fnend." Ms Young stated that theIr relatIOnshIp changed dunng the summer of 2002 She had heard from a co-worker that Ms Sarno was planmng to take Ron, an employee whom she had bnefly dated the prevIOUS year to her daughter's weddIng. She testIfied that she got very upset about 12 thIS and confronted both Ms Sarno and Ron. Both demed It, and Ms Sarno attended the weddIng wIth her common-law partner Gary Ms Young stated that she was "not surpnsed" that Ms Sarno attended the weddIng wIth Gary She had thought about "dISInVItIng" Ms Sarno to the weddIng, but then changed her mInd and decIded to "let It go " After thIS, Ms Young stated that her contact wIth Ms Sarno was "very lImIted" and "stnctly work-related." After the weddIng, they "very rarely spoke" and It was "stnctly busIness- related." She said that she dId not call her outsIde of work after the weddIng. Ms Young testIfied that she was "very upset and annoyed" by Ms Sarno's accusatIOns She was very surpnsed by the allegatIOns She demed that she breached paragraph 3 of the settlement. She never dIscussed the specIfic terms of the agreement, or tell anyone that she receIved money or an amount or even a range She only told people that the matter was "settled" or "fimshed." She was not sure exactly how many employees she said that to SInce there was "talk In the office about It." She dId tell Lynn Thompson and an employee named Joy and "people who asked me at work." Pnor to the settlement, she had dIscussed her gnevance and the remedIes she sought wIth a few co-workers, specIfically Ms Sarno Lynn Thompson and Joanne LeIgh She told them that she wanted compensatIOn for her tIme off and her salary back. She demed that she told Ms Sarno anythIng about the settlement on or after September 19 2002, SInce "I wasn't talkIng to her" Ms Young demed that she called Ms Sarno by cell phone on September 19 2002 In support of that claim, she produced the bIllIng records of the cell phone she used for September 13 19 The phone belonged to her ex-husband. She had blacked out, however all calls other than calls made on September 19 SInce that was the date In Issue No other telephone records were provIded. The bIllIng records showed no calls to Elena Sarno on September 19 There was one call to Ms Thompson's home and one call to the general number at the Court House but Ms Young testIfied that she had called that number to check her VOlce mall On cross-eXamInatIOn, Ms Young was asked whether she had ever called Ms Sarno from the GSB and she answered "on that day no" When asked If she ever had, she replIed "I don't thInk I ever dId." When asked to explaIn how Ms Sarno would know that she had receIved a "four figure" settlement, Ms Young replIed "I belIeve It was a guess on her part" a "lucky guess" On cross- eXamInatIOn, she also said that It was "common sense" gIven that she was off for a penod of tIme and Ms Sarno knew what she makes Four figures was "wIthIn the ball park." In Ms Young's VIew Ms Sarno dId benefit from makIng these allegatIOns In her VIew Ms Sarno had gotten caught caUSIng trouble and was lookIng for an out. In terms of her comment that "S" was "sweatIng buckets" Ms Young testIfied that thIS referred to a medIatIOn In HamIlton whIch took place before the weddIng. She said the room was qUIte warm and everyone was hot and sweatIng. She saw "S" down the hall and he was sweatIng as well She acknowledged that she told that to others "around the office" IncludIng Ms Sarno Ms Young added that Ms Sarno wanted to testIfy on her behalf, but she advIsed her that she was not reqUIred. 14 In terms of Ms Hiuser's knuckles beIng rapped, Ms Young demed that she was referrIng to the heanngs In thIS matter In Toronto Instead, she said that Ms Hiuser "should have her knuckles rapped" for her constant vIOlatIOns of the collectIve agreement. She agreed that she had said thIS to Ms Sarno but It was around a year before the weddIng. Ms Young was not aware If Ms Sarno was aware of a "practIce regardIng gag orders" She said, "I thInk we dIscussed that gnevances sometImes have gag orders" It was "possIble" She dId not dISCUSS It, however In regard to thIS matter On cross-eXamInatIOn, she was asked If she ever told anyone that there was a gag order In thIS matter and she replIed, "No I don't thInk I ever dId." In terms of P Ms Young testIfied that she filed a dISCnmInatIOn complaInt agaInst hIm, whIch was InvestIgated. She agreed that she had spoken to Ms Sarno about thIS In terms of the tape recorder she agreed that she had a conversatIOn wIth Ms Sarno about purchasIng a tape recorder Before the stnke In March 2002, she had been asked to purchase a tape recorder by the Umon for use dunng the stnke She purchased one from Wal Mart. She mentIOned It to Ms Sarno but she dIsagreed that she told her that she purchased It from Zellers or that the pnce was $40 to $80 The pnce she mentIOned was $40 to $60 In terms of actual tapIng, Ms Young acknowledged, on cross-eXamInatIOn, that she was aware that a co-worker MartIn TosOlan, had taped a labour relatIOns meetIng wIth management about the Tnal CoordInator posItIOn, and that she knew beforehand that he was dOIng It. She demed ever USIng a tape recorder at the GSB 15 In the partIculars of thIS matter filed by the Umon, It was demed that Ms Young ever used a tape recorder to record labour relatIOns proceedIngs of any kInd, but that "another employee dId so on one occaSIOn, wIthout Ms Young's knowledge or consent " Although these partIculars were prepared wIth the assIstance of Ms Young, they were prepared by counsel not by Ms Young. AccordIngly I do not find It appropnate to rely on any dIscrepancy In the partIculars to determIne credIbIlIty In thIS case Ms Young demed that she ever told anyone that she would be gOIng for "6 figures" or that she followed Ms Hiuser to the washroom at the GSB to overhear or tape her saYIng "I don't belIeve I ever dId that, no" Nor dId she say It to Ms Sarno It was the testImony of both Ms Hiuser and Ms Glassford that the relatIOnshIp between Ms Sarno and Ms Young dId not change untIl March 2003 Both testIfied that after the meetIngs In March InvolvIng thIS matter theIr relatIOnshIp became straIned, and they no longer talked to one another NeIther of the two employees who testIfied on behalf of Ms Young, Ms Fazakas nor Ms Thompson, was asked If they had notIced a change In the relatIOnshIp Ms Fazakas testIfied that, In connectIOn wIth the Issues that arose wIth Ms Sarno In March 2003 she enlIsted Ms Young's assIstance In plaYIng a practIcal Joke on Ms Sarno - by tellIng her somethIng that was not true Ms Young agreed to do so and dId, although Ms Sarno dId not belIeve what she was told by Ms Young. Ms Thompson testIfied that she would "occasIOnally have lunch wIth Ms Sarno and ElaIne" although neIther of them were socIal fnends of hers On cross-eXamInatIOn, Ms Thompson was asked If she had any dIscussIOns wIth Ms Young about Ms Sarno and Ms Thompson stated 16 that "In the last few months" ElaIne was IrrItated because Ms Sarno had Interfered wIth her romantIc relatIOnshIp wIth Ron. Ms Thompson also confirmed that Ms Young had said that Ms Hiuser had gotten her knuckles rapped "several tIme over the years" In relatIOn to vanous gnevances She had also heard ElaIne say that "S" had been "sweatIng buckets" and that Ms Young repeated It, many tImes to a lot of people In her VIew however Ms Young was referrIng to the medIatIOn seSSIOn held In HamIlton, not In Toronto Ms Young, accordIng to Ms Thompson, had "a habIt of tellIng stones over and over agaIn." She agreed that Ms Young had a "gIft for gab" - mostly factual, wIth some embellIshment lIke the "sweatIng buckets" comment. Ms Thompson was not sure IfMs Young had wIthdrawn, settled or medIated the harassment gnevance She knew that she was seekIng lost wages and was concerned about her contract. She was not sure If she was seekIng money for stress She had no Idea If Ms Young had also sought sIck credIts, and "could only guess" at the amount of money she was seekIng, but she thought that she could estImate It. Decision There IS no dIspute between the partIes regardIng the Importance of settlement agreements The GSB has repeatedly emphasIzed the Importance of settlement agreements to effectIve labour relatIOns between the partIes As set forth In OPSEU (Landry-King) and Ministry of Community and Social Services GSB No 1593/84 (Knopf) at p 8-9 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 17 In OPSEU (Union Grievance) and MinistlY of Natural ResourcesManagement Board of Cabinet GSB No 1526/91 1294/92 (Kaplan) at p 31 the Board referred to the [s]anctIty of [s ]ettlements" statIng that "It IS absolutely essentIal that the Board gIve effect to final settlements reached by the partIes" It IS also undIsputed that where confidentIalIty IS made a term of the settlement, It IS entItled to enforcement lIke any other term. The reasomng for thIS IS well-expressed In NorthfieldMetal Products Ltd [1991] OLRB Rep May 664 at para. 15 Many settlements Include the payment of compensatIOn by an employer to employees or the umon. Many of these would no doubt never have been finalIzed If the employer could not have been assured that no lIabIlIty or blame could be attnbuted to the employer SImIlarly such 'wIthout preJudIce' settlements would often be of lIttle utIlIty If they were not kept confidentIal It IS not dIfficult to see why In a partIcular cIrcumstance, an employer mIght be wIllIng to settle a complaInt wIth payment of compensatIOn to a complaInant, but only If lIabIlIty IS not attnbuted and only If the commumty and other employees do not learn that the company has agreed to pay compensatIOn. The employer's fear IS that the dIsclosure of such a payment, apart from the amount of the payment, mIght alone undercut the efficacy of the demal of lIabIlIty and mIght also lead other employees or umons to file further complaInts, In the belIef that the employer wIll settle such complaInts wIth cash. That IS why some partIes InSISt on confidentIalIty as a condItIOn of any settlement. The eVIdence of Ms Hiuser establIshes that these type of consIderatIOns were Important to the Mimstry In ItS decIsIOn to settle Ms Young's gnevance It was concerned about S's reputatIOn and dId not want a settlement, partIcularly the payment of compensatIOn, to undermIne the Employer's demal of lIabIlIty It dId not want the terms of the settlement dIsclosed. What IS very much In dIspute IS whether or not the confidentIalIty provIsIOn In the September 19 2002 settlement was breached by Ms Young. As noted above, the answer to thIS 18 questIOn turns on credIbIlIty BasIcally Ms Sarno says that her InformatIOn came from Ms Young. Ms Young demes ever tellIng Ms Sarno or anyone, about the terms of the agreement. In assessIng credIbIlIty both counsel urged me to rely on the test set forth In Faryna v Chorny [1952] 2 D.L.R. 354 pp 356-8 The credIbIlIty of Interested wItnesses, partIcularly In cases of conflIct of eVIdence, cannot be gauged solely by the test of whether the personal demeanour of the partIcular wItness carrIed convIctIOn of the truth. The test must reasonably subJect hIS story to an eXamInatIOn of ItS consIstency WIth the probabIlItIes that surround the currently eXIstIng condItIOns In short, the real test of the truth of the story of a wItness In such a case must be ItS harmony wIth the preponderance of the probabIlItIes whIch a practIcal and Informed person would readIly recogmze as reasonable In that place and In those condItIOns The Fmyna v Chorny standard has been applIed In other GSB cases. OBLEU (Massa) and LCBO GSB No 2033/97 (Abramsky) OPSEU (Dale et al.) and Ministry of Health & Long- Term Care GSB No 0783/00 (Abramsky) After much consIderatIOn, applYIng thIS standard to the facts In thIS case I conclude, on the balance of probabIlItIes, that It IS more lIkely than not that Ms Sarno learned about the terms of the settlement from Ms Young. AccordIngly I conclude that, on the balance of probabIlItIes, Ms Young breached paragraph 3 of the settlement agreement. I reach thIS conclusIOn for the folloWIng reasons The eVIdence clearly establIshed that for a sIgmficant penod of tIme, Ms Sarno and Ms Young were fnends and confidants Fora penod of tIme, Ms Young would regularly call Ms Sarno and dISCUSS gnevances and hIghly personal matters 19 For example, It IS undIsputed that Ms Young told Ms Sarno about her complaInt agaInst p Although there IS some dIspute whether It was a harassment complaInt or a dISCnmInatIOn complaInt, Ms Young told Ms Sarno that she had filed "a complaInt" agaInst P She dId not tell thIS to Lynn Thompson, and there IS no eVIdence that she told anyone else about It. But she told Ms Sarno As Ms Hiuser testIfied, the complaInt agaInst P was a hIghly confidentIal and sensItIve matter whIch led to a WDHP InVestIgatIOn. ThIS admIssIOn by Ms Young IS sIgmficant for two reasons FIrst, It provIdes some InsIght Into the type of matters dIscussed between Ms Young and Ms Sarno Second, It corroborates Ms Sarno's testImony that she was told thIS by Ms Young. There are also a number of other matters whIch Ms Young admItted she told Ms Sarno whIch agaIn corroborates Ms Sarno's account. She admItted that she told Ms Sarno about S "sweatIng buckets" although she InsIsted thIS was about a medIatIOn In HamIlton, not Toronto and that everyone was sweatIng that day It should be noted that the medIatIOn In HamIlton, accordIng to Lynn Thompson, was to deal wIth three gnevances, IncludIng the alleged harassment one Further Lynn Thompson testIfied that Ms Young repeated that story about S sweatIng "many tImes to a lot of people" There IS no IndIcatIOn that anyone other than S was reported by Ms Young to have sweated that day or that she lImIted the comment to the medIatIOn In HamIlton. Ms Young also acknowledged that she told Ms Sarno that she had purchased a tape recorder and that anyone could purchase one for around $40 to eIther $60 or $80 The small dIscrepancy In the pnce and the place of purchase (Zellers or Wal Mart) does not dImImsh the fact that such a conversatIOn took place, as asserted by Ms Sarno 20 The Umon asserts that Ms Sarno's credIbIlIty was undermIned by her ImtIally tellIng management that Ms Young had filed a "sexual harassment" complaInt agaInst S when she clearly knew that It had been a harassment complaInt. It asserts that she knew that the allegatIOn was untrue and she said It anyway sInce It was the more scandalous charge It IS certaInly possIble that Ms Sanro knowIngly told management that Ms Young had filed a sexual harassment gnevance It IS equally possIble however that she dId so mIstakenly When questIOned about It by management on March 24 Ms Sarno qUIckly clanfied that she meant "harassment" not sexual harassment. At the heanng, she acknowledged that If she said sexual harassment, she was mIstaken. These CIrcumstances undermIne the VIew that she Intended to mIslead management. Further It IS sIgmficant that Ms Young acknowledged that she told Ms Sarno about her harassment gnevance and the remedIes she was seekIng. She dId not tell very many co-workers - only three, IncludIng Ms Sarno Ms Sarno moreover was far more famIlIar wIth that Issue than was Ms Thompson. Ms Thompson dId not know for example, that Ms Young was seekIng a return of sIck credIts But Ms Sarno knew It IS clear that Ms Young also dIscussed other gnevances wIth Ms Sarno such as the Tnal CoordInator gnevance Ms Sarno was aware of that gnevance and that It was a "completely dIfferent gnevance" than the harassment one She knew whIch employees were Involved In that gnevance and where the medIatIOn took place The eVIdence also supports Ms Sarno's assertIOn that Ms Young told her that Ms Hiuser had "gotten her knuckles rapped" rather than Ms Young's claim that she said 21 management "should get Its knuckles rapped." ThIS was confirmed by Ms Thompson who testIfied that Ms Young had told her that Ms Hiuser had gotten her knuckles rapped "several tImes over the years" In relatIOn to vanous gnevances There IS no questIOn that parts of Ms Sarno's testImony were "fuzzy" partIcularly as to exactly when Ms Young told her about the settlement terms She also dId have a motIve agaInst Ms Young. She blamed her for "InstIgatIng" the sItuatIOn WIth Jeanme Fazakas But rather than create a wholly fictItIOuS tale about Ms Young, I find It more lIkely than not that her "pay back" was revealIng what Ms Young had told her In confidence Ms Sarno knew there was a gag order on the settlement and knew she was gOIng to get Ms Young In dIfficulty by her dIsclosures, and she dId. The fact that Ms Sarno knew there was a gag order on the settlement IS an extremely Important fact. It was one of the three Important terms of the agreement. Another was the $100000 payment - a four-figure sum Ms Sarno therefore knew two out of the three Important terms of the agreement. Although It IS possIble that It was a lucky or educated guess, I find It more probable under all of the facts, that she knew It was four-figure sum and knew there was a gag order because she had been told that. Not all settlement agreements contaIn a confidentIalIty clause Many do partIcularly where money IS Involved, but not all Ms Young dId not recall dISCUSSIng such clauses generally wIth Ms Sarno although It was "possible" that she told her that "sometImes" such clauses are Included. Yet Ms Sarno knew correctly that there was a confidentIalIty clause In regard to thIS settlement. 22 The settlement In thIS case could have taken many dIfferent possIble forms - from a new assIgnment or contract to a vanety of other thIngs It dId not have to Include money and certaInly not "four figures" Yet Ms Sarno knew correctly that there was a four-figure sum paid. Further the fact that "four figures" of lost wages are requested In a gnevance does not mean that a "four-figure" settlement wIll result. Many tImes, partIes agree to thIngs In a settlement that have no relatIOnshIp to what IS requested In the gnevance LIkewIse, the compensatIOn paid IS often far less than the requested amount. Consequently the fact that Ms Young told Ms Sarno what she was seekIng In the gnevance does not establIsh that she would know wIth such accuracy what settlement was reached. AccordIng to my notes of Ms Sarno's testImony she also knew that Ms Young receIved a number of credIts In the settlement. If thIS IS correct, then Ms Sarno knew all three specIfic terms of the settlement agreement. Although I could accept that Ms Sarno mIght be able, or lucky enough, to guess one of the sIgmficant terms, I cannot accept that she could correctly guess all three But even If I am wrong about the credIts, I also cannot accept that Ms Sarno was lucky enough to guess two of the three cntIcal terms - the four-figure settlement and the gag order Under the facts of thIS case, I find the assertIOn that It was a lucky or educated guess to be InCOnsIstent WIth the "preponderance of the probabIlItIes whIch a practIcal and Informed person would readIly recogmze as reasonable In that place and In those condItIOns" There are sImply too many other possIbIlItIes that could have been encompassed In the settlement for someone to so accurately guess the actual ones Further and equally sIgmficant IS the fact that she dId not Include any erroneous terms, as one mIght expect If she were truly gueSSIng. In lIght of the accuracy of her knowledge, theIr relatIOnshIp and the type of thIngs Ms Young conveyed to Ms 23 Sarno I find It more lIkely than not that she told Ms Sarno the terms of the settlement agreement. In so rulIng, I cannot accept Ms Young's assertIOn that her relatIOnshIp wIth Ms Sarno ended shortly after the weddIng of her daughter on September 7 2002 It sImply makes no sense that Ms Young would termInate a good fnendshIp over an unfounded claim that Ms Sarno said that she was gOIng to attend the weddIng wIth Ron. To her credIt, she confronted both Ms Sarno and Ron, and both demed It. Ms Young dId not "dISInVIte" Ms Sarno and decIded to "let It go " Ms Sarno not surpnsIngly Intended to attend the weddIng wIth her common law husband, and she dId so Although Ms Young may not have apprecIated the Joke, If there was one, I find It unlIkely that she abruptly termInated theIr fnendshIp over It, partIcularly after her decIsIOn to "let It go " In thIS regard, I find It sIgmficant that neIther Jeanme Fazakas nor Lynn Thompson were asked to venfy that the relatIOnshIp between Ms Sarno and Ms Young ended wIth the weddIng. In contrast, Ms Hiuser and Ms Glassford testIfied that they saw no matenal change In theIr relatIOnshIp untIl March 2003 whIch IS generally consIstent WIth when Ms Sarno claimed It ended. In regard to the date of the termInatIOn of theIr fnendshIp Ms Sarno's testImony was, agaIn, somewhat "fuzzy" ImtIally she said that It ended wIth Ms Young's movement away from her area, whIch occurred In February 2002 But even Ms Young dId not claim that theIr fnendshIp ended at that tIme It clearly contInued after that date Later In her testImony Ms Sarno testIfied that a vanety of factors led to the end of theIr fnendshIp In early 2003 IncludIng her havIng coffee wIth Ron, and her faIlure to return Ms Young's telephone calls Her 24 testImony that Ms Young was angry wIth her for havIng coffee wIth Ron appears to have been corroborated, In part, by Ms Thompson who testIfied that "In the last few months" ElaIne was IrrItated wIth Ms Sarno for ruInIng her relatIOnshIp wIth Ron. In thIS regard, I cannot agree wIth the Umon that Ms Sarno told Ms Glassford that her relatIOnshIp wIth Ms Young ended over "Issues relatIng to Ron" meamng the weddIng. She told her that Ms Young was angry because she was seen havIng coffee wIth Ron. On cross- eXamInatIOn, she was adamant that she was not referrIng to the weddIng IncIdent. Consequently I cannot agree wIth the suggestIOn of the Umon that Ms Sarno adJusted her story about Ron In order to have theIr fnendshIp end at a later date One other thIng also leads me to conclude that the relatIOnshIp between Ms Young and Ms Sarno dId not end wIth the September 7 2002 weddIng. Ms Young testIfied that she "was not talkIng" to Ms Sarno after that date, yet when asked to partIcIpate In a Joke on Ms Sarno In March 2003 by Ms Fazakas, Ms Young agreed to do so even though It Involved talkIng wIth Ms Sarno If Ms Young were truly not on speakIng terms wIth Ms Sarno except for "stnctly busIness-related matters" It seems unlIkely that she would have partIcIpated In thIS manner There IS no eVIdence that Ms Young was reluctant to speak to Ms Sarno or expressed any dIscomfort wIth her role In the matter In terms of the cell phone records presented by the Umon, I find that they do not sIgmficantly undermIne Ms Sarno's credIbIlIty although It IS a factor I have consIdered. It certaInly establIshes that Ms Young dId not call Ms Sarno from that cell phone dunng the day of September 19th acceptIng that the call to the general number of the court house was to retneve her VOlce mall, as Ms Young stated. But It does not establIsh that the numerous other calls Ms 25 Sarno stated were made by Ms Young about the settlement were not made Many of those calls, accordIng to Ms Sarno were made to her home at mght and would not appear on the cell phone bIll There are also other phones at the GSB from whIch calls may be made Consequently whIle the cell phone bIll does undermIne Ms Sarno's claim that Ms Young called her from the heanng on the day of the settlement, It does not sIgmficantly undermIne her overall credIbIlIty for all of the reasons set forth In thIS Award. The Umon argues that SInce Ms Sarno repeated her demals about the Fazakas matter before the Board, I can only conclude that she "lIed to the Employer and she lIed to thIS Board." In my VIew the fact that the Employer dIscIplIned Ms Sarno regardIng the Fazakas matter and dId not credIt Ms Sarno's account In the IncIdent does not establIsh that Ms Sarno should not be belIeved In regard to the Instant matter It IS certaInly possIble to credIt some thIngs a person says, and not others It all depends, as set out In Farnya v Chorny supra, on the probabIlItIes of the sItuatIOn and the surroundIng CIrcumstances AccordIng to Ms Hiuser In the Fazakas/ Sarno dIspute management was Influenced by the fact that Ms Fazakas had filed a formal complaInt, whIch IS somewhat unusual, and that she had been very upset about what occurred. In essence, they found that, In those cIrcumstances, It was more lIkely than not that matters took place as asserted by Ms Fazakas ThIS sItuatIOn IS dIfferent and turns on ItS own facts In thIS case Ms Sarno dIsclosed, In what may be charactenzed as eIther a spurt of anger or an attempt to deflect matters from herself, that Ms Young told her the terms of the confidentIal settlement, and she accurately testIfied to eIther two or all three sIgmficant terms She knew there was a "four figure" settlement and she knew the terms were confidentIal Based on my notes, she also knew that she receIved a number of credIts On the balance of probabIlItIes, the accuracy wIth whIch she stated the sIgmficant 26 terms of the settlement was lIkely more than a lucky or educated guess It IS more probable than not that the InformatIOn she dIsclosed about the settlement came from Ms Young. Remedy The GSB has a duty to protect a settlement that the partIes have reached. As set out In Northfield Metal Products Ltd supra at para.16 "Where the settlement IS clear partIes should not expect to be allowed to depart from the terms they have agreed to or to be relIeved from the consequences of theIr settlement." In that case the Board found that the employees had revealed that the company had paid cash to settle the complaInt. By dOIng so they had revealed a term of the settlement and breached the confidentIalIty provIsIOn. In that case the partIes had agreed, In the settlement, on the penalty should there be a breach and the Board ordered that remedy In thIS case on the balance of probabIlItIes, I have concluded that Ms Young breached the confidentIalIty provIsIOn In the settlement agreement. Under that provIsIOn, In the event of a breach "Vice Chair Abramsky wIll have the authonty to determIne the appropnate remedy" Consequently I now must determIne "the appropnate remedy" The Employer seeks a declaratIOn as to the breach and repayment of the $1000 00 paid to Ms Young. ConfidentIalIty clauses, lIke all other terms of a settlement agreement, should have real meamng. PartIes rely on such clauses In decIdIng whether or not to settle As set forth In Northfield Metal Products Ltd supra, at para. 15 "It IS not dIfficult to see why an employer mIght be wIllIng to settle a complaInt wIth payment of compensatIOn to a complaInant, but only If lIabIlIty IS not attnbuted and only If the commumty and other employees do not learn that the company has agreed to pay compensatIOn." The eVIdence establIshed that the confidentIalIty provIsIOn was an Important consIderatIOn for the Employer In decIdIng to settle, partIcularly In 27 lIght of the nature of the gnevance The eVIdence showed that S was "funous, shocked and very upset" when he learned that the terms of the settlement had been revealed. Ms Glassford was "stunned" and "mortIfied for [S]" SInce she had not heard anythIng about the gnevance before The confidentIalIty provIsIOn was Included to aVOld exactly what happened here The breach of a confidentIalIty provIsIOn also causes harm to the gnevance settlement process, whIch IS cntIcal to the proper functIOmng of labour relatIOns and gnevance admInIstratIOn. For settlements to work, partIes must be sure that all of the terms wIll be honoured and enforced ThIS IS equally true for employers, umons and gnevors A remedy must ensure that confidentIalIty clauses wIll be adhered to wIthout beIng pumtIve Deterrence IS also a consIderatIOn. Each case, naturally wIll vary In terms of the appropnate remedy In thIS matter I have consIdered both a declaratIOn alone and a declaratIOn combIned wIth a return of the $1000 00 payment. I have a sIgmficant concern, however about a declaratIOn alone, partIcularly In regard to deterrence In some cases, an IndIVIdual may not care about a declaratIOn SInce It does not Impact them financIally although I do not belIeve that would be true In thIS case On the contrary I belIeve that both sIdes would care sIgmficantly about a declaratIOn whIch IS why I have senously consIdered a declaratIOn alone In thIS case But I am concerned about the message that such a remedy would send - breach a confidentIalIty provIsIOn and all you get IS a declaratIOn. That could easIly be Interpreted as an IneffectIve remedy wIth no deterrence value After consIdenng all of the relevant factors - the Importance of confidentIalIty clauses to the gnevance settlement process, the Importance of deterrIng breaches of such clauses, the Importance placed on the confidentIalIty provIsIOn by the Mimstry In thIS case and the harm 28 caused to S - I conclude that the appropnate remedy IS a declaratIOn combIned wIth a return of the $1000 00 payment. AccordIngly for all the reasons set forth above 1 I declare that, on the balance of probabIlItIes, Ms Young breached the confidentIalIty provIsIOn contaIned In paragraph 3 of the September 19 2002 Minutes of Settlement. 2 Ms Young IS to return the $1000 00 paid to her under that settlement, on terms to be worked out between the partIes 3 I shall remaIn seIzed. Issued at Toronto thIS 23rd day of January 2004 RarrdI H. Abramsky Vice-Chair