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HomeMy WebLinkAbout2006-1918.Magee.10-03-19 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#2006-1918 UNION#2006-0310-0017 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Magee) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFOREVice-Chair Nimal Dissanayake FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Barristers & Solicitors FOR THE EMPLOYER George Parris Ministry of Government Services Counsel HEARING October 21, 2009 and March 12, 2010. - 2 - Decision [1]The Union claims that the employer has contravened the Board?s direction in its decision dated May 20, 2008 and the Minutes of Settlement executed by the parties subsequently on March 20, 2009, (hereinafter ?the MOS?) by failing to restore the grievor to full duties of a conservation officer. [2] When the hearing was convened to deal with this issue, it was apparent that there were a number of issues between the parties arising from the union?s claim. Following opening statements on March 12, 2010, it was agreed that the Board ought to initially determine an issue between the parties described as a ?jurisdictional issue?. The parties also agreed that the Board should issue a brief decision on that issue, with reasons to follow. [3] The ?jurisdictional issue? is as follows. In the award dated May 20, 2008 I directed the employer inter alia, ?to forthwith restore him (the grievor) to full duties of a CO?, and retained jurisdiction with respect to all outstanding matters that arise from the grievance. The union alleges that to date the employer has not complied with that direction. In the alternative, the union alleges that the employer has breached the MOS by failing to return the grievor to full duties of a conservation officer. [4] The employer?s position is that the remedy directed in the Board decision of May 20, 2008, is no longer enforceable because it has been supplanted and overridden by the MOS and that the grievor?s entitlement is now solely governed by those minutes. The employer submits that the terms of those minutes do not include an obligation to restore the grievor to full duties of a conservation officer. [5] The narrow issue put to the Board was whether or not the employer had a continuing obligation under the Board order dated May 20, 2008, to return the grievor to full duties. In a brief decision dated March 17, 2010, I concluded that while it was open to the parties by agreement to amend or substitute the Board?s direction that the grievor be restored to full duties of a conservation officer, they had not done so.I therefore concluded that the Board?s direction - 3 - continues to be in effect subject to the terms set out in the MOS. This decision sets out the reasons for that conclusion. [6] The MOS dated March 20, 2009 reads as follows: -Without precedent or prejudice to any other matter, the parties agree to the following as full and final settlement of all outstanding grievances including issues relating to the grievances known as GSB# 2006-2564, 2006-2563, 2006-1915, 2006-1916, 2006-1917, 2006-1689, 2006-1918, 2007-0912, 2007-0913, 2007-1425, 2008-0279, 2008-0278, 2008-2649: 1. The Employer agrees to withdraw the letter of March 16, 2009, and it shall not be placed in the Grievor?s personnel file or referred to in the future for any purpose related to the Grievor?s employment; 2. The March 16, 2009 letter referred to above shall be replaced with a letter requesting that the Grievor participate in coaching sessions as follows: i) To participate in coaching with Michael Kaufman of Charles Novogrodsky and Associates in a session to be conducted between April 20 and May 1, 2009 in Toronto. ii) Further sessions beyond this session are at the Grievor?s option. iii) Any and all sessions are to be completely confidential between the Grievor and Mr. Kaufman. The only report to the Employer will be that the session or sessions took place. iv) All costs of the coaching shall be borne by the Employer, and the Employer will cover the Grievor?s expenses for attending sessions with Mr. Kaufman. 3. On the basis set out in Paragraph 2, the Grievor agrees to participate in the session or sessions. 4. The Grievor will return to work on Monday, May 4, 2009. He will report on that day to the Guelph office and will meet with his supervisor Jeff Columbus who will assign him his duties at the Vineland office and provide such orientation as Mr. Columbus sees useful and necessary and introduce him to his co-workers. 5. The parties including the Grievor agree that the terms and conditions of this settlement will be kept confidential. 6. This written agreement represents the complete settlement agreement between the parties in relation to the above noted grievances and any related - 4 - matters. The parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this written settlement. 7. In consideration of the above, the Union and the Grievor hereby withdraw the grievances, and agree not to make these circumstances the subject of any grievance, complaint, application or proceeding of any nature, before any court, tribunal or body of any nature, including but not limited to grievances under the Crown Employees Collective Bargaining Act, or the Collective Agreement, or complaints to the Human Rights Commission or the Office of the Ombudsman, complaints under the Public Service of Ontario Act, its directives and regulations (including predecessor legislation, or applications under the Employment Standards Act. 8. The Grievor and Union agree that the above-noted grievances is (sic) withdrawn. 9. Vice Chair Dissanayake shall be seized with the interpretation or implementation of this settlement. [7] The employer?s contention is that the parties had substituted the obligation imposed upon it by the Board?s direction, i.e. to restore the grievor to full duties of a conservation officer, with the obligation set out in para.4 of the MOS. Paragraph 4 makes no reference to ?full duties of a conservation officer?, but simply envisages that the supervisor Mr. Columbus will assign the grievor his duties. It does not in any way qualify or restrict the supervisor?s management right to assign duties. [8] Neither party adduced evidence as to the discussions that led to the signing of the MOS. However, evidence was adduced as to the interaction between the employer and the union and/or the grievor following the Board?s decision. This evidence is helpful in ascertaining whether there was an agreement between the parties to amend or substitute the Board?s direction. [9] Following the Board?s direction dated May 20, 2008, on November 5, 2008 the parties entered into a ?Return to Work Protocol? which provided as follows: 1. The Employer agrees that the Grievor will be returned to full duties as a Conservation Officer based at the Aurora Office no later than December 8, 2008. 2. Until his return to full duties, the Grievor will continue to be on leave of absence with pay. - 5 - 3. The parties agree to make their best efforts to facilitate the Grievor?s return to full duties. 4. By November 7, 2008, the Union and the Employer will designate representatives to work with the other in co-ordinating the implementation of this protocol. 5. The Union will meet with the employees based at the Aurora Office before November 21, 2008 to review their concerns about the Grievor?s return to full duties and to advise the employees, in view of the Board?s Order, that there is no basis for a work refusal based on the Grievor?s past conduct. The Union will also advise all employees of the Aurora Office that all employees have the right to a workplace free from harassment and discrimination and encourage the employees to fully respect this right. 6. The Employer and the Union will take all reasonable steps to ensure that there is no work refusal based on the Grievor?s past conduct and to ensure that the right of all employees of the Aurora Office to a workplace free from harassment and discrimination is fully protected. If the Employer decides, after consultation with the Union representative, to retain an external facilitator at the Employer?s expense, the Union will cooperate in the work of the facilitator to achieve the aims of this Protocol. 7. The Union and the Employer will meet with the Grievor on or before November 28, 2008 to listen to any concerns he may have and to support him in his return to full duties. The Employer will outline to the Grievor its expectations for steps he can take to facilitate his return to full duties. 8. The parties agree to put in place a process through which employees, including the Grievor, may report concerns about workplace relations following the Grievor?s return to full duties. 9. The parties agree to move forward the process of resolving all of the outstanding grievances of the Grievor in an orderly way. 10. Vice-chair Dissanayake will be seized for purposes of implementing and interpreting this protocol (Emphasis added) [10] The emphasised portion of para.1 of the protocol clearly establishes that in executing it, the parties intended that the employer would comply with the Board?s direction that the grievor be restored to full duties of a conservation officer. The parties agree upon a number of provisions designed to facilitate an orderly return of the grievor to full duties. In other words, the protocol is about how to implement the Board?s direction. - 6 - [11] Following the execution of the return to work protocol, the parties litigated a grievance dated August 29, 2006 filed by the grievor, wherein he grieved the denial of his request for a lateral transfer under article 6.6.1. For reasons set out in my decision dated February 4, 2009, I allowed the grievance. At para.29, I ordered that ?the grievor be forthwith granted a lateral transfer to the vacant Conservation Officer position in Vineland?. [12] On March 3, 2009, Mr. Tim Moody (Regional Enforcement Operations Manager) sent a letter, attaching a document titled ?Expectations to facilitate a successful return to work for Ian Magee at the Vineland Office of the Ministry of Natural Resources?. The letter explicitly states that the grievor would receive a lateral transfer to the Vineland Office ?in compliance with the ruling of the Grievance Settlement Board?. The ?expectations? document, which was to be signed by the grievor, includes the following statement: The intent of this process is to facilitate a healthy and professional working relationship between Ian Magee and his co-workers and to facilitate a successful return by Ian Magee to his full duties and responsibilities as a field Conservation Officer. (Emphasis added) [13] On March 16, 2009 Mr. Moody wrote a further letter to the grievor in which, he reviewed inter alia, concerns expressed by the Board in its decision about the grievor?s conduct, as well as concerns expressed by the grievor?s co-workers in the Aurora Office. Mr. Moody emphasizes in the letter that despite his transfer to the Vineland Office, the grievor must take steps to improve his interpersonal and communication skills before he returns to duty in Vineland, and to that end requires that the grievor attend personal coaching sessions to be provided by the employer. This letter, unlike the letter or March 3, 2009, does not make explicit reference to ?full duties?. However, neither does it set out any understanding that the grievor would be subject to any limitations in terms of the duties he would be performing. In other words, it does not indicate any change from the understanding in the letter of March 3, 2009 that the goal was to facilitate a successful return by Mr. Magee to his full duties and responsibilities as a field conservation officer. [14] With that background and context, I am required to interpret the MOS and determine whether it represents an agreement between the parties to amend, substitute or otherwise detract from the Board?s order. There is no question that the MOS constitutes, as expressed in its - 7 - preamble, ?a full and final settlement of all outstanding grievances including issues relating to? a number of grievances, including the grievance in question. The question however is, what did the parties agree in the MOS as to the duties the grievor would be performing. If they agreed to duties other than the ?full duties? ordered by the Board, the agreement of the parties would override the Board order. [15] The Board on May 20, 2008 made a specific direction that the grievor be restored to full duties of a conservation officer. It is incumbent on the employer to demonstrate how it was relieved of the obligation imposed upon it by the Board?s order. Employer counsel offered two reasons as to why the Board order was no longer in effect. The first was based on the grievor?s lateral transfer to the Vineland Office in compliance with a Board decision. Counsel pointed out that all of the evidence considered in the hearing that resulted in the Board?s direction that the grievor be restored to full duties of a conservation officer related to the grievor?s position of conservation officer at the Aurora Office. The Board?s direction, therefore, also related to that position in the Aurora office. It was employer counsel?s contention that the Board?s order had no application after the grievor was no longer in his position at the Aurora Office. [16] With respect I disagree. In the grievance that led to the direction that the grievor be accorded a lateral transfer, the sole issue was whether or not he was entitled to transfer from a conservation officer position in Aurora to the identical position in Vineland. At stake was the location of the grievor?s position of conservation officer. Neither party raised any issue about the duties he would be performing at either location, and the Board was not called upon to address that issue. The mere change of location in the identical position does not, in my view, result in the wiping out of the Board order, that the grievor should be restored to full duties of a conservation officer. [17] Indeed, the evidence indicates that even the employer did not, following the Board?s order that the grievor be laterally transferred to Vineland, envisage that the grievor would be performing duties less than full duties. In the March 3, 2009 ?expectations? document as set out at para.12 above, the intent clearly was to return the grievor to ?full duties and responsibilities as a field conservation officer?. - 8 - [18] The second argument by employer counsel was to the effect that the MOS had supplanted the Board?s direction and that the MOS does not include an undertaking by the employer to restore the grievor to full duties. Citing Board case law, he relied on the ?sanctity of settlements?. Counsel points out that unlike the ?full duties? language in the Board?s direction, and the return to work protocol, the MOS makes no reference to full duties. He submits that the parties were very familiar with the ?full duties? language and that if they intended to include such an obligation in the MOS, they would have used explicit language as they did in the protocol. [19] With respect I disagree again. The Board?s direction dated May 20, 2008 followed nine days of hearing. The gist of the union?s complaint was the employer?s refusal to assign the grievor full duties of the conservation officer position. The sole remedy sought, and provided by the Board to the grievor, was that he be restored to full duties. There is no questioning the very important principle that parties must be held to terms of settlement agreed upon. However, the question is whether the parties had agreed in the MOS to override the Board order. In order to conclude that the grievor and the union had in effect agreed to give up the benefit obtained in the Board order, there has to be some clear evidence to that effect. Such evidence is simply lacking. The evidence, to the contrary, is that during the period leading up to the execution of the MOS, as well as following the Board order, the parties operated on the understanding that the goal was to return the grievor to full duties. [20] Counsel correctly points out that para.4 of the MOS only provides that the grievor?s supervisor will assign the grievor ?his duties?. It does not explicitly state that he will would be assigned ?full duties?. According to counsel that indicates an intention to depart from the goal pursued up to that point of returning the grievor to full duties. [21] The MOS simply refers to ?his duties?. If the parties were reaching an agreement wherein the union was giving up the very remedy it had fought for and successfully achieved, it is reasonable to expect that some mention would be made of the employer?s right to assign to the grievor duties less than full duties. The parties have not done so. The term ?his duties? is neutral. It should reasonably be interpreted as meaning ?the duties he is legally entitled to?. It is not reasonable to interpret the phrase ?his duties? as representing, by implication, an agreement - 9 - by the grievor and the union to give up the benefit of the Board order. This interpretation of para.4 of the MOS is further buttressed by the evidence reviewed above, that even subsequent to the execution of the MOS, the employer was operating on the basis that the goal was to return the grievor to full duties of a conservation officer. [22] While the foregoing determines the narrow issue put to me, i.e. that the Board order to return the grievor to full duties remains in force, for the guidance of the parties I make the following observation. In my ruling dated March 17, 2010 I held that while the Board?s order to return the grievor to full duties remained in force, it was subject to the terms agreed upon in the MOS. The Board?s order was that the grievor be restored to full duties ?forthwith?. It may well be, as employer counsel asserted, that the parties had agreed in the MOS that the grievor would be restored to full duties, but only after certain agreed upon conditions are met and certain steps taken, to facilitate that return to full duties. If there was such agreement, that would have the effect of amending the Board?s order that the grievor be restored to full duties ?forthwith?. The employer?s obligation then would be to return the grievor to full duties of a conservation officer upon the satisfaction of the conditions agreed upon. Whether such conditions were agreed upon and if so, whether the conditions have been met, remain to be addressed, and I make no finding in that regard. [23] I remain seized with jurisdiction to deal with all matters outstanding between the parties as to the implementation of the Board?s direction in its decision dated May 20, 2008. The hearing will continue for that purpose as scheduled by the Registrar. th Dated at Toronto this 19 day of March 2010. Nimal Dissanayake, Vice-Chair