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HomeMy WebLinkAbout2007-2388.Hawkes.09-07-29 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2007-2388, 2007-2389, 2007-2390, 2007-2391, 2007-2392, 2007-2393, 2007-2394, 2007-2395, 2007-2396, 2007-2397, 2007-2398, 2007-2399, 2007-2400, 2007-2401, 2007-2402, 2007-2403 UNION#2007-0302-0016, 2007-0302-0017, 2007-0302-0018, 2007-0302-0019, 2007-0302-0020, 2007-0302-0021, 2007-0302-0022, 2007-0302-0023, 2007-0302-0024, 2007-0302-0025, 2007-0302-0026, 2007-0302-0027, 2007-0302-0028, 2007-0302-0029, 2007-0302-0030, 2007-0302-0031 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hawkes) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Deborah J.D. Leighton FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Peter Dailleboust Ministry of Government Services Counsel HEARING February 3, 2009. SUBMISSIONS June 2, 2009. - 2 - Decision INTRODUCTION [1]Ms. Valerie Hawkes, a Probation and Parole Officer with the Ministry, grieved in 2005 and 2006,inter alia, that the employer had violated the collective agreement, the Human Rights Code, and the Workplace Discrimination and Harassment Prevention policy (WDHP) . She alleged that she was working in a poisoned workplace and that the employer had failed to accommodate her return to work properly. The parties reached an agreement to settle the grievances, by Memorandum of Settlement (MOS) dated February 10, 2006. [2]Beginning on August 1, 2007, the grievor filed multiple grievances alleging breaches of the MOS and reprisal against her for filing a WDHP complaint. There are sixteen grievances in total before me and the union advised that it would be forwarding more to the board. The union seeks to tender evidence of incidents and events that were the subject matter of the original grievances, and all evidence relating to the WDHP complaint. The employer objects to this evidence. This decision addresses the employer?s preliminary motion to exclude evidence underlying the original grievances. The parties argued the preliminary motion on February 3, 2009 and at the conclusion, they advised that they were still pursuing settlement options and asked me to wait before rendering the decision. On June 2, 2009, the parties notified me that they required the decision. - 3 - EMPLOYER?S SUBMISSION [3]Counsel for the employer submitted that the substance of the allegations in the grievances before me is that the employer breached the MOS of 2006 and failed to protect her from a manager. She is also alleging that she suffered reprisal for filing a WDHP complaint. Counsel noted that the original grievances all relate to an incident that occurred during a training session in 2005, and allegations that the employer did not handle the WDHP complaint appropriately. He argued that the evidence of the events that led to the MOS in February of 2006 should not be admissible because the substance of the original complaint is not necessary in order to address the new grievances and more importantly, since the settlement included a full and final release clause.This board has consistently recognized the need to hold parties to their agreements and recognized the principle of the sanctity of settlements. Counsel argued the board has said that only in exceptional circumstances will it allow evidence of a settled grievance. In his view, there are no special circumstances here. The union seeks to admit this evidence to show a pattern of discrimination and harassment and relies on an allegation of bad faith. Counsel emphasized that there was no evidence of bad faith before me. [4]Two of the grievor?s current complaints allege that the employer violated the MOS by concluding the WDHP investigations after the signing of the settlement and by communicating the result of the investigation to her. Counsel argued that the letter from the Deputy Minister to Ms. Hawkes, advising her of the results of the investigation, should not permit the grievor to litigate a matter settled by MOS. Counsel argued that there is no need to admit evidence of the details of the investigation because the employer concedes that the investigation process continued to its conclusion after the MOS. He - 4 - noted that the employer takes the WDHP investigation process seriously, and that it has a duty to see the investigations through to completion. There was nothing in the MOS that indicated the employer would not finish the investigation. [5]In closing, counsel also submitted that the original incidents occurred in 2005 and the delay in defending against the allegations that occurred some three and a half years ago would prejudice the employer. Further, the evidence would take extensive hearing days and it is not pertinent to the current grievances before me. Counsel for the employer relied on the following cases in support of his submission: OPSEU (Fletcher) and Ministry of Community, Safety and Correctional Services, GSB 2004-0083 (Leighton); OPSEU (Rolfe) and Ministry of Community and Social Services, GSB 2003-3512 (Briggs). UNION?S SUBMISSION [6]Counsel for the union argued that part of the reason for wanting to provide the evidence that underlies the incidents of the MOS is to show a pattern of harassment. However, it is also because the Deputy Minister?s letter undermines the MOS. The letter informed the grievor that the investigator concluded, ?the facts gathered during the investigation do not substantiate, on a balance of probabilities, the complaint under the WDHP policy.? Counsel argued that this letter exonerated the employer and thus it was necessary for me to hear the evidence to assess the grievor?s current complaint. The grievor claims that the letter has adversely affected her and it is important for me to hear the original evidence in order to understand how damaging it was to her. The evidence is also important in understanding the current complaint about the manager?s comment to her. Thus, the - 5 - context is important in order to understand the current grievances. Counsel for the union submitted that the union agrees with the principle of sanctity of settlements. However, he argues that the employer has breached the MOS by continuing with the WDHP investigation, which was also part of the subject matter of the grievor?s original complaint. Counsel contended that the parties agreed that all the issues of the grievances were resolved and withdrawn. He noted that paragraph 13 of the MOS provides: ?THE PARTIES agree that this settlement is without any admission of wrongdoing, misconduct, action or inaction, or liability, and entered into in good faith for the expeditious resolution and positive labour relations in this matter.? [7]Counsel for the union argued that this clause applies to the WDHP investigation. He argued that while the grievor gave up the right to prove her position by settling the grievances on February 10, 2006, the employer likewise gave up the right to prove its case. By continuing the WDHP investigation to its conclusion, the employer violated the MOS. [8]Counsel argued that the current grievances relate to the old grievances. One grievance refers to alleged reprisal for filing a WDHP complaint, which cannot be addressed without evidence of the original complaint. Another grievance alleges a breach of the duty to accommodate the grievor in a safe workplace and another that the grievor has been harmed by the Deputy Minister?s letter, adversely affecting her, but also continuing the gender-based discrimination against her. [9]The union submitted that while it accepts the need for settlements to be honoured, there are exceptions to the rule, citing Fletcher, supra and Rolfe, supra. In certain - 6 - circumstances, it is reasonable for the board to hear evidence that underlies a MOS. Counsel urged me to make an exception in this case and hear the evidence. He argued that the employer had not acted in good faith when it continued the WDHP investigation. He argued that by continuing the investigation, which concluded that there was not sufficient evidence to support the allegations, the employer had acted in bad faith. It is unfair to the grievor that the employer was able to go forward and exonerate itself, while she was not able to do the same. Counsel noted that the Deputy Minister?s letter was sent out approximately a month after the MOS. He noted that the WDHP policy requires a response thirty days after the investigation is finished. The investigation into this matter finished in December of 2005, so the response should have been out at the time the MOS was signed. Nothing in the MOS reserves the right to release the WDHP investigation results. [10]The union is not seeking a remedy for the events that occurred before the MOS, but counsel argued that it was necessary in order to fully understand and appreciate the current grievances. Counsel also submitted OPSEU (Patterson) and Ministry of Children and Youth Services (2006) GSB 1989-1546 et al. (Abramsky); OPSEU (Ranger) and Ministry of Community and Correctional Services (2005) GSB 2002-2375 (Leighton) DECISION [11]The issue before me is whether evidence of events in 2005 that were the subject matter of grievances, settled by MOS in early 2006, should be admitted in the current proceedings. The union seeks to adduce the evidence to show a pattern of harassment and to provide the context for the current grievances. The union acknowledges the principle of the - 7 - sanctity of settlements-- that parties must be able to rely on the agreement that the matter will not return in another forum or guise. However, the union argues that I should make an exception here because the employer has acted in bad faith by continuing a WDHP complaint. [12]The board has addressed this issue consistently over the years, recognizing the importance of enforcing settlements between the parties. The board has discretion as to what evidence it admits, but it has said that it will not admit evidence of a settled matter unless there are special circumstances. As Vice-Chair Abramsky stated in her thorough review of the board?s case law on the issue in Dale, ? once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise? ( as cited in Fletcher, supra, at p. 8). [13]The facts in the case before me are almost identical to those in Fletcher, supra. In Fletcher, the union sought to adduce evidence in a subsequent grievance hearing of an incident that occurred on a picket line, which had been grieved and settled. The argument before the board was that in order to appreciate the current grievances, it was necessary for the context of the case to hear the evidence of the original grievance. The union also alleged that the employer had acted in bad faith. After carefully considering the submissions, I decided that the evidence of what occurred on the picket line was not relevant to the grievances then before me. It was not necessary to hear the picket line evidence in order to assess the reprisal allegations made by the grievor. Further, the principle of sanctity of settlements meant that the evidence could not be used even for a limited purpose, such as to show an ongoing pattern of harassment, or to provide a - 8 - context for the subsequent grievances. Finally, there was no evidence of bad faith to support a decision to find special circumstances to admit the evidence. [14]The same reasoning applies to the case before me now. The evidence of the training session incident, which was grieved and settled, is not relevant to the current grievances, which allege breaches of the MOS. For example, the allegation that after signing the MOS the employer failed to provide a safe workplace for the grievor must be proved with evidence of incidents subsequent to the settlement. Whether the continuation of the WDHP investigation is a breach of the settlement likewise does not require the underlying evidence of the original complaints. The issue is not whether the events as alleged in the original grievances occurred during the training session in 2005. This evidence is simply not helpful in deciding the issues of the current grievances. Further, I am not persuaded that it should be allowed even for the limited purpose of arguing damages, should a breach be proven. I am convinced that the harm that would occur by allowing such evidence far outweighs any probative value. As noted above, this board has held repeatedly that when the parties settle a case, with clear language that includes a release clause, as is the case here, the evidence that would have been called to support the original complaint, should not be permitted, even for a limited purpose in a subsequent grievance, except in special circumstances. The principle of sanctity of settlements is too important to whittle away with exceptions, except in the clearest case. [15]Counsel for the union argues that this is such a case, because the employer has breached so many provisions of the MOS. Further, because the employer has acted in bad faith by continuing the WDHP investigation to its completion after the MOS was signed, it cannot - 9 - rely on the principle of sanctity of settlements. I am not persuaded that I should make an exception for the reasons as argued and admit this evidence. I have no evidence before me that the employer acted in bad faith by finishing the WDHP investigation. The alleged breaches of the MOS are as yet allegations only. Even if I assumed for the sake of the motion that the union will prove the breaches, it does not follow that the evidence of the original grievances should be admitted. To be clear the union is not arguing that the breaches are so significant that the board ought to find that the MOS is void and begin a fresh hearing into the original grievances. [16]Having carefully considered the submissions of the parties and for the reasons above, I have decided to grant the employer?s motion. The evidence of the original grievances settled by MOS in early 2006 and the evidence relating to the WDHP complaint to the date of the last original grievance shall not be admitted. The original grievance forms and the MOS of 2006 shall be part of the record before me in the current proceeding. th Dated at Toronto this 29 day of July 2009. Deborah J.D. Leighton, Vice-Chair