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HomeMy WebLinkAbout2021-2088.Spracklin.2023-06-16 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-2088; 2021-2891; 2022-3563 UNION# 2021-0201-0003; 2021-0201-0004; 2022-0201-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Spracklin) Union - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE Annie McKendy Arbitrator FOR THE UNION Georgina Watts Morrison Watts Counsel FOR THE EMPLOYER Dimitrios Molos Treasury Board Secretariat Counsel HEARING October 14, 2022, February 1, 2023 and June 6, 2023 - 2 - Decision [1] The Employer brought a motion on June 6, 2023, requesting that I deem grievances 2021-0201-0003, 2021-0201-0004 and 2022-0201-0004 to be resolved. [2] The three grievances were scheduled to be heard pursuant to article 22.16 of the collective agreement. This Decision is therefore issued pursuant to article 22.16, with brief reasons and without precedent. [3] The parties provided me with brief submissions. The relevant facts were stipulated by the parties and there was no substantive disagreement as to what took place. [4] Two days of hearing were held during which the parties attempted to reach a settlement. On the second day, February 1, 2023, the Union made an offer to resolve the grievances, which was not accepted by the Employer at that time. [5] The Employer submitted that on February 1, 2023, the Union explicitly left open their offer to resolve the grievances. The parties agreed on the amount that would be paid to the Grievor. The outstanding disagreement related to the discipline that was the subject of one of the grievances, and more specifically to the purposes for which the discipline could be relied upon in the event that the Grievor received further discipline prior to its removal from her record pursuant to article 22.15. The Union’s final offer included language that would limit the Employer’s ability to rely on the discipline to a narrow set of circumstances similar to those that had formed the basis of the discipline at issue. [6] Several weeks after the hearing, counsel for the Employer received instruction to agree to the term limiting the purpose for which the discipline could be relied upon and provided the Union with draft minutes of settlement reflecting their agreement. However, the Union advised them that the Grievor was no longer in - 3 - agreement with the proposed settlement. As such the Employer brought the present motion to enforce the agreement. [7] Counsel for the Employer directed me to the Board’s decision in Ontario Public Service Employees Union v Crown in Right of Ontario, 2013 CanLII 74176, in support of their position that the oral offer made by the Union was binding once there was agreement on the substantive issues. The Employer submitted that the agreement crystalized when their agreement to the last issue, the purpose for which the suspension could be relied upon, was communicated to the Union. [8] In response to the Employer’s motion, the Union acknowledged that their notes also reflected that the offer had been left open. They further acknowledged that the Employer’s proposed minutes of settlement contained clauses that met the essential elements of their Feb 1, 2023 offer. However, the Union submitted that the Grievor had changed her mind about wanting to enter into the settlement. The Grievor explained that she did not understand that her offer had been left open and that she believed she could change her mind. [9] I find, based on the facts as stipulated by both parties, that the offer to settle was explicitly left open by the Union at the end of the mediation on February 1, 2023. I further find that when the Employer provided draft minutes of settlement to the Union, they accepted the essential elements of the offer and thereby the agreement crystallized. I therefore find that there exists an enforceable and binding agreement, from which the Union cannot now withdraw. [10] The parties made no specific submissions on the Grievor’s position that she did not understand that if the offer was left open the Employer could accept it and that a binding agreement would then exist. However, I note that counsel for the Union had the authority to bind the Union, and consequently the Grievor. The Grievor’s misunderstanding does not change my finding that the agreement was binding when the Employer accepted it. - 4 - [11] For these reasons, I order the following terms, which were agreed by the parties to represent the essential terms of the agreement: 1. The Employer shall compensate the Grievor for twelve days (87 hours) of lost wages, subject to applicable statutory and mandatory deductions, at the Grievor’s rate of pay on April 4, 2022, as compensation for the alleged breaches. 2. The Employer will make the payment within 45 days of the issuance of this decision. 3. The Employer may rely on the discipline issued on December 17, 2021, only in considering any future incident of alleged wilful non-compliance or insubordination with respect to any health and safety policy or direction, and only for as long as the letter of discipline remains in the Grievor’s personnel file pursuant to Article 22.15.1 of the Collective Agreement. 4. The Grievances are fully and finally resolved. Dated at Toronto, Ontario this 16th day of June 2023. “Annie McKendy” _________________________ Annie McKendy, Arbitrator