GSB#1839/99
UNION# 00B063
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Schaefer)
Grievor
-and-
The Crown in Right of Ontario (Ministry of Training, Colleges and Universities)
Employer
BEFORE Randi H. Abramsky Vice-Chair
FOR THE GRIEVOR George Richards Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER Len Hatzis Counsel Legal Services Branch Management Board Secretariat
HEARING December 6, 2001.
AWARD
At issue is whether the Ministry has violated the terms of the settlement agreement entered into between the parties on August 8, 2000. The Ministry raised a preliminary motion to dismiss for lack of jurisdiction. For the reasons set forth below, I conclude that this dispute must be dismissed.
Facts
The grievor had been in a temporary, unclassified position with the Ministry when her contract of employment was not renewed. On December 12, 1999, she grieved that non-renewal, alleging a violation of Article 3 of the collective agreement. On August 8, 2000, the parties entered into a settlement agreement that states, in pertinent part, as follows:
Whereas the Grievor has filed a grievance dated December 10, 1999, and
Whereas the grievances are scheduled for mediation/arbitration for August 8, 2000;
The parties agree to a full and final settlement of all outstanding grievances without precedent or prejudice and without the admission of wrongdoing by any party:
The employer acknowledges that effective immediately until December 1, 2000, the grievor shall have the right to apply to all restricted competitions originating in the Ministry of Training, Colleges and Universities for which the Grievor would otherwise be unable to apply.
The grievor shall be provided with an eight month contract ITO 2 unclassified position with the Ministry of Training, Colleges and Universities’ Mississauga office beginning December 1, 2000.
This memorandum of settlement constitutes full and final settlement of any and all claims, grievances, or actions whatsoever that the grievor has or may have against the Employer, its representatives, employees, and officials whether under a collective agreement, statute (including but not limited to the Employment Standards Act and/or Human Rights Code), regulation, policy, contract or law as a result of or arising out of the grievance dated December 10, 1999 (GSB No. 1839/99). The grievor hereby forever releases the Employer, its representatives, employees, and officials from all such claims, grievances and actions.
The parties agree that the terms of this settlement shall remain confidential and shall not be communicated by the grievor to any other person except immediate family, Local 230 OPSEU Executive or the Regional OPSEU Staff Rep. or as required by law.
Subject to compliance with the foregoing, the grievance shall be deemed to have been resolved and the grievances shall be withdrawn by the union and the employee.
In the event of any issues arising from the implementation of this agreement the GSB and arbitrator Randi Abramsky shall remain seized.
Shortly before this settlement agreement was reached, the Ministry had posted for a full-time classified ITO 2 position in Sarnia, Ontario, with a closing date of August 14, 2000. No mention of this position was made at the mediation, which had dealt with temporary unclassified positions. According to the Union, however, its ultimate goal was to get the grievor into a classified position and it sought to do this by allowing her to compete in competitions when they arose, including restricted ones. The Sarnia competition was an open competition, open to members of the public. There were approximately 100 applicants, only 9 of whom were interviewed. The grievor was not selected for an interview.
It was the Union’s position, as set forth in an April 9, 2001 letter to counsel for the Ministry, that the Ministry violated the settlement by failing to “give any reasonable consideration to the merits of her application for the Sarnia position.” The Union contended that the Sarnia position should have been brought to the grievor’s attention during the mediation and that, at the least, she should have been granted an interview for the position.
Arguments of the Parties
1. The Ministry
The Ministry contends the wording of paragraph 1 of the settlement agreement is clear and unambiguous and gives the grievor the “right to apply to all restricted competitions originated in the Ministry...for which the Grievor would otherwise be unable to apply.” It submits that there is no allegation that she was denied this right in that the Sarnia competition was an open one, not a restricted competition. It contends that this settlement agreement is unrelated to the Sarnia competition. The Ministry asserts that since there is no contention that the settlement terms were violated, the Board has no jurisdiction to proceed to the merits.
The Ministry contends that under the case law, the parties are bound to the clear language of a settlement agreement and cannot have the board rewrite it after the fact. In support it cites to Gottwald and Ministry of the Attorney General (1998), PSGB/0127/96 (Leighton).
The Ministry also asserts that the decision in OPSEU (Union Grievance) and Management Board Secretariate (2001), GSB No. 0405/99 (Abramsky), is distinguishable. In that case, the board held that employees who accept pay-in-lieu of notice under Article 20.2.3 and who are “eligible to apply for restricted competitions” for a period of 24 months enjoyed a substantive right under the collective agreement, including the right to have their application considered by the employer in good faith. The right was not limited to “the literal ability to apply.” (Dec. at p. 17). The Ministry argued that in that case it was undisputed that the employees had the right to apply to restricted competitions under Article 20.2.3 and the meaning of the provision was in question, whereas here, it is the terms of a settlement agreement which are in question. It submits that in a settlement agreement, the parties are bound to the specific terms of the agreement.
2. The Union
The Union contends that under the settlement agreement and the board’s decision in OPSEU (Union Grievance), supra, the grievor was given the right to apply to restricted competitions, which includes the right to have the employer consider her application for a restricted competition in good faith. While acknowledging that paragraph 1 does not mention open competitions, it argues that it should be inferred to include open competitions such as the Sarnia one. It submits that the settlement agreement sought to treat the grievor better than a member of the public and therefore, by inference, she should have the same right to have her application for an open competition be considered by the employer in good faith.
Decision
In paragraph 6 of the settlement agreement, the parties agreed that I would remain seized “[i]n the event of any issues arising from the implementation of this agreement...” This board’s jurisdiction, therefore, is limited to issues arising from the implementation of the settlement agreement. It does not flow from the collective agreement generally.
The parties in this case dispute the meaning of paragraph 1 of the settlement agreement. The Ministry takes a literal interpretation – that the grievor was given the right to apply to restricted competitions in the Ministry for which she would otherwise, as a non-member of the OPS, be unable to apply. The Union takes a broader interpretation – that it is not only the right to apply to restricted competitions that she was given, but the right to be considered in good faith in any competition for which she applied.
Even assuming, without deciding, that the right to apply to restricted competitions in this settlement agreement includes, as it did in the OPSEU (Union Grievance) case, the right to have one’s application considered in good faith by the Employer, this settlement agreement is limited to restricted competitions. It did not say “any competition, restricted or otherwise.” While it may not have been deemed necessary to include the right to apply to open competitions since anyone may apply to them, the question here is whether the Employer violated the terms of this settlement agreement? Because the Sarnia competition was an open one, it was not governed by this settlement agreement.
I find the decision in Gottwald and Ministry of the Attorney General, supra, to be of assistance. In that case, the settlement agreement required the employer to pay the grievor the sum of “$8,000, less statutory deductions.” The grievor later argued that the payment ought to be treated as “service time related” which would increase his pensionable service time. The board dismissed the matter, stating that “[t]he parties are bound by the clear language of the settlement agreement....” It noted that nothing in the agreement required the Ministry to treat the payment as “service related time.” It also noted that the parties could have agreed that pension contributions should be deducted or that the payment would extend the grievor’s last day of employment, but did not. Accordingly, the board ruled that the policy considerations behind giving effect to settlement agreements reached by the parties – to encourage settlements and avoid the costs of arbitration – applied in that case.
In the same way, the settlement agreement in this matter, by its terms, is limited to the right to apply to restricted competitions. It does not speak to open competitions, and it would be a very long stretch to include such competitions within its scope. The parties are bound to the language used in the settlement agreement. In this case, even if that language is interpreted to include the right to have her applications to restricted competitions considered in good faith, it does not pertain to open competitions as well.
Accordingly, there is no violation of the settlement agreement and this matter must be dismissed.
Issued at Toronto, this 14th day of December, 2001.