HomeMy WebLinkAbout2001-0901.Globerman.03-05-07 Decision AMENDED
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# 0901/01
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
The ASSOcIatIOn of Management AdmInstratIve and
ProfessIOnal Crown Employees of Ontano
(Globerman) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of Health and Long-Term Care) Employer
BEFORE FelIcIty Bnggs Vice-Chair
FOR THE UNION James McDonald
Counsel
Sack Goldblatt Mitchell
FOR THE EMPLOYER Yasmeena Mohamed
Semor Counsel
Management Board Secretanat
HEARING Apnl 7 2003
2
DECISION
In October of 1999, Mr Globerman, a financial consultant wIth the MmIstry of
Health, founded "Runnmg To Dayhght" after the death of hIS father He served as
presIdent after ItS foundmg and the Employer took the posItIOn that holdmg such
office constItuted a vIOlatIOn of ItS conflIct of mterest pohcy Two gnevances were
filed and an arbItratIOn heanng date was scheduled for Febnmry 1, 2002 On that
day the partIes agreed to mediate and the day was spent negotIatmg terms and
prOVISIOns toward a mutually acceptable resolutIOn
The dIspute before me IS relatIvely straightforward. was a settlement reached by
the partIes? It was the Employer's posItIOn that there was a settlement wIllIe the
ASSOCiatIOn took the OpposIte VIew At the heanng the partIes agreed to put
documents and correspondence before me and call no Vlva voce eVIdence
However, there were two facts outsIde of the documents that the partIes agreed to
put before me FIrst, the Employer conceded that the Memorandum of Settlement
that was handwntten on Febnmry 1, 2002 was not sIgned because the Employer
had concerns about the wordmg of parts of the document Second, the Employer
was aware at the tIme that AMAPCEO had a pohcy that Gary Gannage, PresIdent
of the AssocIatIOn, had to sIgn all settlements
It was common ground that at the end of the day on Fnday F ebnmry 1, 2001, Mr
McDonald had to leave for personal reasons Pnor to hIS departure he gave a
handwntten document entItled Mmutes of Settlement (heremafter referred to as the
"Mmutes") between the Employer, AMAPCEO and the gnevor On the followmg
Monday, Mr McDonald sent a typed verSIOn of the same Minutes HIS covenng
letter to Ms Mohamed stated.
Further to our attendance at the Gnevance Settlement Board, and the
agreement whIch was reached that day, attached IS a typed copy of the hand
3
wntten Mmutes of Settlement that I presented to you on behalf of
AMAPCEO and Mr Globerman
I confirm that you advIsed me that the Government had some questIOns
about some of the wordmg m these draft Mmutes of Settlement I also
confirm our agreement that you and I would dISCUSS these concerns and
reword the Mmutes of Settlement to satIsfy all partIes
I look forward to receIpt of eIther a telephone call from you or a copy of any
notes that you mIght wIsh me, AMAPCEO and Mr Globerman to consIder
m the context of these draft Mmutes of Settlement
I wIll not have had an opportunIty to proof the typed verSIOn of the Mmutes
of Settlement whIch IS enclosed, so I trust that you wIll take that mto
consIderatIOn m your reVIew
Attached to the Minutes of Settlement were two appendIces One was a Letter of
ResIgnatIOn and the other was a Letter of Reference On Febnmry 8, 2002, Ms
Mohamed responded m wntmg to Mr McDonald. She attached Mmutes of
Settlement that dIffered from Mr McDonald's document m a number of areas and
also had a thIrd appendIx whIch was entItled "Schedule C" - Release Between
February 8, 2001 and March 1, 2002 there were a number of telephone
conversatIOns between Mr McDonald and Ms Mohamed. On March 1,2001, Ms
Mohamed sent an electronIc commUnICatIOn and attachment to Mr McDonald's
assIstant WIth a covenng emml that stated.
Enclosed IS the employer's final draft of the Globennan memorandum of
settlement Please forward same to Mr McDonald's attentIOn, for hIS
reVIew I tnlst thIS finahzes the matter
It dId not finahze that matter Mr McDonald wrote to Ms Mohamed on March 7,
2002 wIth nme paragraphs of suggested changes albeIt three of them were eIther
typographIcal or grammatIcal m nature After two weeks Ms Mohamed responded
that she had to seek mstnlctIOns from her chents On Apnl 9, 2002, the Employer
responded wIth a revIsed copy of the Mmutes and a covenng letter to Mr
McDonald outhnmg the now five areas of dIsagreement At the End of July Ms
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Mohamed remmded Mr McDonald that he stIll had not responded to her Apnl 9,
2002 letter
On August 30, 2002 Mr McDonald wrote to Ms Mohamed advIsmg that the
gnevor had retamed Ius own counsel, Mr DIzgun He had wntten to AMAPCEO
outhnmg "reqUIrements for changes to the terms of the proposed settlement" In hIS
August 30, 2002 letter Mr McDonald asked Ms Mohamed If the Employer would
agree to the changes or would be prepared to enter mto any negotIatIOn/mediatIOn
seSSIOn and If neIther optIOn was acceptable the Board would be contacted to
proceed wIth the heanng of the gnevances
In her November 4,2002 response, Ms Mohamed mfonned Mr McDonald that
1 The MmIstry IS not prepared to accept the proposals tendered by Mr
DIzgun, on behalf of Mr Globennan
2 The aforementIOned proposals speak predommantly to a re-negotIatIOn of
settlement funds
3 The MmIstry IS of the posItIOn that, the monetary settlement funds have
been fully agreed upon by the partIes, at the mediatIOn seSSIOn held on
Febnmry 1, 2002 The Mimstry remams of the posItIOn that, at the close
of the medIatIOn seSSIOn held on February 1, 2002, all the partIes,
mcludmg VIce Chair Kaplan, were of the full understandmg that an
agreement had been reached between the partIes, and the only reason the
settlement agreement was not sIgned on February 1, 2002, was because
of your request for an early departure on the aforementIOned day Hence
at the close of the medIatIOn, the only outstandmg Issue between the
partIes remamed the conveyance of the settlement terms mto wntmg for
executIOn by all partIes
4 The MmIstry's posItIOn IS that subsequent dIscussIOns between the
partIes related predommantly to Issues of confidentIahty, form and
phraseology of certam terms As of F ebnmry 1, 2002, the settlement was
finahzed.
5 Accordmgly, the Mimstry IS fully prepared to medIate and pursue further
settlement dIscussIOns on the confidentIahty Issues, as hIghhghted under
cover of my letter dated Apnl9, 2002
5
EMPLOYER SUBMISSION
Ms Mohamed revIewed the Minutes of Settlement that were handwntten on
February 1, 2001 by Mr McDonald. She set out those prOVISIOns that were, m the
Employer's VIew, Important and those that were not substantIve The mam area not
finahzed was "the breadth and scope" of paragraph 15 that consIdered the
confidentIahty prOVISIOns It was suggested that the failure to agree upon that
prOVISIOn IS not sufficIent to render a findmg that there was no agreement between
the partIes
The fact that the Mmutes were never sIgned IS not sIgmficant for the purposes of
my detennmatIOn, the Employer asserted. Although It IS to be noted that the Letter
of Reference that was appended to those handwntten Mmutes was, m fact, sIgned
by the gnevor's supervIsor In any event, there can be no doubt that there was a
deal between the partIes Indeed, the February 4, 2002, letter from Mr McDonald
referred to the "agreement that was reached" The partIes agreed that the final
Mmutes should be typed and Mr McDonald provIded that formahzed document A
reVIew of the correspondence mdIcates no substantIve dIspute The partIes were
merely dIscussmg termmology Any outstandmg dIfferences dId not relate to the
essentIal components of the deal That IS to say that further dIscussIOns dId not
relate to compensatIOn, resIgnatIOn or L TIP entItlement The contmumg attempts
to reword or clarIfy the document were regardmg the confidentIahty arrangements
and certam obhgatIOns Nothmg that remamed went to the commItments agreed
upon by the partIes on February 1, 2002 Although the dIscussIOns were takmg
place over a protracted penod of tune there was no mdIcatIOn from eIther sIde that
the fundamentals of the deal were problematIc However, matters changed
completely wIth Mr McDonald's letter of August 30, 2002 At that pomt the
6
ASSOCiatIOn and the gnevor resIled from the fundamental areas of the agreement as
eVIdenced by a new proposal regardmg compensatIOn and penSIOn
The Employer submItted that the prmcIple of the sanctIty of settlements IS now
tnte In tlus regard the Employer rehed upon Re The Crown In Right of Ontano
(Ministry of Health and Long-Term Care) and OPSEU (Dale et all (March 11,
2002), unreported (Abram sky) GSB#0783/00, Re The Crown m Right of
Ontano (Ministry of Environment) and OPSEU (Skates et all (May 21, 1992),
unreported (Barrett) GSB# 1177/91, and Re Ontano Racmg CommiSSIOn and
AssocIatIOn of Management, AdmmlstratIve and ProfessIOnal Crown
Employees ofOntano (December 13,2001),104 L.A C (4th) 166 (Knopf)
In conclusIOn the Employer asked that I order the Minutes of Settlement from
February 1,2002 m effect
ASSOCIA TION SUBMISSIONS
Mr McDonald, for the Umon, suggested that there were a number of reasons why I
should find that the partIes dId not reach a settlement The first was that no
document was sIgned by anyone at any tIme ThIS IS a three cornered agreement
between the Employer, the AssocIatIOn and the gnevor and there was no sIgnature
appended by any representatIve to any settlement document A sIgnature IS not a
mere matter of form It IS proof of a commItment to be bound to an agreement
regardless of what occurs later The absence of sIgnatures should be compelhng
Second, there IS no document that was sIgned by Mr Gannage, PresIdent of the
ASSOCiatIOn or a duly appomted desIgnate The Employer knew that Mr Gannage's
sIgnature was not Just a formahty but a necessIty for an agreement
7
The tlllrd reason there can be no findIng of an agreement IS the sIgnIficant number
of Issues raised by the Employer after Febnmry 1,2002 that had yet to be resolved.
The Employer made clear that there were addItIons and deletIOns that were
reqUIred before the matter was resolved. The number of document exchanges
makes thIS clear The UnIon does not dIspute that some of the major Issues were
agreed upon such as the compensatIOn and the fact of the gnevor's resIgnatIOn but
the eVIdence IS clear that there were a number of unresolved Issues
NotwIthstandIng the Employer's assertIOns In ItS submIssIOns, there IS no eVIdence
before thIS Board that estabhshed whIch Issues were of major or mInor Importance
to eIther party and I aIn not at liberty to detennIne or assIgn value to those Issues as
would an Interest Board of ArbItratIOn The fact that the Employer perceIves an
Issue as unImportant does not magIcally make It so It IS eVIdent In the Employer's
very first response to the handwntten MInutes that It wanted a dIfferent resolutIOn
of some of the Issues Its respondIng document contaIned dIfferent terms regardIng
what the gnevor could say about hIS termInatIOn, whIch could be told of the full
details of the agreement, the tImIng of the payment of compensatIOn or the extent
of a restnctIOn regardIng the gnevor's future endeavors These were not
InsIgnIficant matters and clearly were not agreed upon by the partIes Therefore, It
cannot be said that there was a deal
The fourth reason I have to find there was no deal IS because as seen from the
document exchange the partIes contInued to negotIate the terms of the agreement
At no pOInt pnor to August 30, 2002 dId the Employer tell the UnIon, "we had a
deal on February 1, 2002, sIgn It" Indeed the Employer agreed to mediate at least
some aspects of the outstandIng Issues
8
FIfth, the gnevor dId not recogmze there was an agreement between the partIes
ThIS IS apparent by Ius retammg Ius own counsel and developmg counter
proposals WhIle It IS tnle that the gnevor sought further compensatIOn he also
raised Issues about non-monetary matters
Fmally, the ASSOCiatIOn asks what verSIOn of the settlement would I order
enforced. The Employer cleverly suggested that I order the handwntten Mmutes
from February 1, 2002 However, there IS substantIal eVIdence makmg clear that
document was not acceptable to the Employer It IS now too late for the Employer
to take that offer
Mr McDonald suggested that a thorough readmg of the Re Racmg CommissIOn
reveals that If I apply the same prmcIples and questIOns as VIce Chair Knopf to the
matter at hand, I must find for the ASSOCiatIOn
In reply, Ms Mohamed took Issue WIth the ASSOCiatIOn's categonzatIOn of the
handwntten Minutes as a "proposal" It was a deal and the lack of sIgnatures IS not
detennmatIve Further, wlule there were unresolved language Issues there was
nothmg outstandmg between the partIes of substance and so I must find there was a
settlement The Employer was merely seekmg clanficatIOn or rewordmg of certam
terms and that actIvIty should not be construed as eVIdence of no agreement
between the partIes Fmally, the amount of tIme that was taken should not be seen
as proof that the Employer was "negotIatmg"
DECISION
After consIderatIOn, I cannot find for the Employer WhIle I agree the lack of
sIgnatures, m and of Itself IS not detennmatIve, there are many factors whIch lead
9
me to find that there was never sufficIent meetmg of the mmds to bnng about a
findmg of a settlement m these CIrcumstances The Employer asserted that there
was a deal as of Febnmry 1,2001 and all that remamed was the finahzatIOn of the
"breadth and scope" of the confidentIahty prOVISIOn It was further suggested that
the partIes were merely deahng wIth the "the phraseology of certam tenns" I tlunk
not A reVIew of the correspondence reveals that the partIes were negotIatmg
vanous substantIve terms not Just deahng wIth matters of form I agree that the
quantum of compensatIOn and the fact that the gnevor would resIgn were
apparently no longer m dIspute as of the end of the Febnmry 1, 2001 mediatIOn
seSSIOn However, even the addItIon of an agreement on the letter of reference does
not transfonn the negotIatIOns mto a settlement
A reVIew of Re Ontario Racmg CommissIOn (supra) IS useful The Issue m that
case was whether there was a bmdmg settlement between the partIes and whether
the Employer acted properly by mvokmg the doctnne of repUdiatIOn After the
medIatIOn sessIOn, there were Minutes of Settlement sIgned by the duly appomted
Employer representatIve Counsel for the ASSOCiatIOn told the Employer that Gary
Gannage, the ASSOCiatIOn's presIdent, had been communIcated wIth and had gIven
mstructIOns to agree to the terms of the arrangement The meetmg concluded wIth
the understandmg that the mmutes would be sIgned by Mr Gannage and returned
qUIckly to the Employer Less and an hour later the ASSOCiatIOn's representatIve
notIfied the Employer representatIve that Mr Gannage was concerned about
certam aspects of the deal and wanted changes m two specIfic areas The
ASSOCiatIOn categonzed ItS concerns as an "oversIght" m the language The
Employer agreed to one of the desIred changes but would not concede the second,
assertmg that the alteratIOn sought was more than a matter of clanficatIOn
Accordmgly the Employer Issued a new typed verSIOn of the Memorandum of
10
Settlement wIth one of the two changes made The AssocIatIOn contInued to
attempt to negotIate ItS outstandIng Issue
In her decIsIOn, ArbItrator Knopf consIdered the "dehcate art to negotIatIng
settlements" Dunng thIS tentatIve process each party has to assess ItS case on an
ongoIng basIs Such an eXamInatIOn would Include ItS likelihood of success In
htIgatIOn, the costs both human and monetary of proceedIng, the amount of tune
reqUIred for the process to unfold and whether sometlllng less than ItS formal
posItIOn would be sufficIent to resolve the matter At the same tIme each party has
to devIse a strategy toward an acceptable resolutIOn takIng Into account a vanety of
factors IncludIng the tunIng of proposals and how best to structure and dehver
vanous posItIOns to the other sIde As Ms Knopf observed, each set of
negotIatIOns wIll be dIfferent and the dynamIc can be altered by the smallest
change In almost any factor AscertaInIng when negotIatIOns are close to or at a
conclusIOn IS often a dIfficult exerCIse All of these vanous consIderatIOns ensure
that negotIatIOns eIther before or dunng the mediatIOn process or before can be
hugely dIfficult to navIgate and often Impossible to foresee It IS for these reasons
that problems can arIse like In the Instant matter
ArbItrator Knopf found that the case before her "bOIled down" to three
fundamental questIOns, the first of whIch was whether there was a settlement
reached dunng the course of mediatIOn She stated, at page 179
ThIS IS the eaSIest questIOn to answer There can be no doubt that a
settlement was reached. Everyone Involved In those dIscussIOns left theIr
meetIng on September 10th under the unpreSSIOn that a deal had been
achIeved. Both partIes' representatIves had consulted theIr prIncIples
throughout the day and had receIved authonzatIOn to enter Into the specIfics
of the deal Both teams of negotIators IndIcated that they had authonty to
bInd theIr prIncIpals to specIfic tenns A mutually acceptable draft was
created and thIS was sIgned by the Employer The ASSOCiatIOn's counsel
IndIcated that the conventIOn demanded that the ASSOCiatIOn's presIdent sIgn
the same document Counsel for the ASSOCiatIOn undertook that the
11
document would be taken to the presIdent for sIgnature and that It would be
returned Immediately Any questIOn of when Mr Gannage sIgned the
document was laid to rest wIth Mr Campbell's acceptance ofMr Gannage's
word that he also sIgned It on the lOth So whIle nothmg ultImately turns on
when the ASSOCiatIOn actually dId sIgn the ongmal settlement, the
uncontradIcted eVIdence IS that the AssocIatIOn dId sIgn the settlement on
September lOth even though It was not sent back to the Employer untIl many
days later
Therefore It must be concluded that everythmg necessary to create a
settlement occurred on September lOth There was a meetmg of mmds by
those authonzed to bmd theIr prmcIpals, a confirmatIOn of those terms m
wntmg and an agreement to formahze the terms m a typewntten document
wItllln days Therefore, there certamly was a settlement achIeved on
September lOth as eVIdenced by ExhIbIt # 1
It seems to me that the facts of thIS case are very dIfferent from those before Ms
Knopf m almost every respect The first dIfference IS that even though the
medIatIOn day ended wIth the AssocIatIOn leavmg draft Minutes of Settlement, the
Employer had artIculated that It had concerns about the wordmg m the draft
NeIther party had sIgned the document and It was understood that counsel would
dISCUSS the concerns m the followmg days and "reword the Mmutes of Settlement
to satIsfy all partIes" Unfortunately the dIscussIOn that followed dId not resolve
those concerns
In the mstant matter, as m Re Ontario Racmg CommissIOn, the Employer knew
of the ASSOCiatIOn's pohcy regardmg the necessIty of Mr Gannage's sIgnature on
the settlement document Ms Knopf had eVIdence that there was a dIscussIOn
between the ASSOCiatIOn's counsel and Mr Gannage wherem pennISSIOn was gIven
to approve the deal and an mdIcatIOn was communIcated that the Mmutes of
Settlement would be sIgned upon receIpt There were no sImIlar facts before me
The Employer knew of the ASSOCiatIOn's pohcy but at no pomt was It mfonned
that the Mmutes were approved by or, about to be sIgned by, Mr Gannage
12
As stated earlIer, the facts before Ms Knopf revealed that "mutually acceptable"
Mmutes of Settlement were drafted and even sIgned by the Employer Here,
unsIgned mmutes drafted by the ASSOCiatIOn's counsel (not yet approved by Mr
Gannage) were provIded to the Employer at the end of the day that the Employer
was not prepared to sIgn because of "phraseology" concerns
Thmgs proceeded very qUIckly m the facts before Ms Knopf In the mstant matter
the partIes contmued to negotIate the terms of a number of vanous paragraphs of
the Mmutes of Settlement over a protracted penod of tIme A month after the
medIatIOn Mr McDonald sent a letter to Ms Mohamed that mdIcated the gnevor
stIll had "the followmg concerns" regardmg nme aspects of the Memorandum On
Apnl 9, 2002, some two months after the mediatIOn seSSIOn the partIes had stIll not
agreed on varIOUS terms of the settlement mcludmg the tImmg of the payment of
compensatIOn, confidentIalIty and dIsclosure of certam aspects of the deal, the
gnevor's further mvolvement wIth the FoundatIOn untIl Ius resIgnatIOn becomes
effectIve and the final wordmg of the Letter of Reference It seems to me that
these dIsputes are concernmg matters of substance and not Just a dIscussIOn of
"tennmology"
The Employer suggested that I should find there was a deal m part because there
was no mdIcatIOn dunng theIr correspondence that the fundamentals of the deal
were problematIc Agam, It IS dIfficult for me to determme that the above
mentIOned outstandmg Issues were not "fundamental" aspects of the deal The
Employer argued that the sanctIty of settlements IS now tnte I agree However, I
cannot find that the partIes ever had a settlement m tlus matter The Employer's
request for an enforcement order underscores the problem wIth such a findmg The
Employer asked that I order the February 1, 2001 draft handwntten Mmutes of
Settlement mto effect However, that IS the very document that the Employer told
13
the ASSOCiatIOn It had concerns and questIOns about Further, It IS the very
document that the partIes contInued to negotIate changes to for months I cannot
find that the partIes agreed to those draft MInutes of Settlement
I make no comment on the wIsdom of amendIng one's posItIOn by demandIng an
Increase In what IS reqUIred to achIeve a settlement partIcularly on Issues that were
consIdered to no longer be In dIspute I merely observe that thIS type of conduct IS
occasIOnally the unfortunate bI-product of protracted or frustratIng negotIatIOns
F or all of these reasons I find that there was no settlement reached between the
partIes on February 1, 2001 or later regardIng the two gnevances filed by Mr
Globennan As requested by the partIes I remaIn seIzed In the event of dIfficultIes
ImplementIng thIS decIsIOn IncludIng any Issue of habIhty as the result of the
gnevor's return to work
Dated III ~oronto tlus.7''' of May, 2003
.
F ehcIty D Bnggs