GSB#1749/98, 1750/98, 0129/98, 0276/99
UNION# 99A133, 99A134, 99C136, 99C340
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Gordon)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE Graeme H. McKechnie Vice-Chair
FOR THE GRIEVOR John Brewin
Counsel
Ryder Wright Boyle & Doyle
Barristers & Solicitors
FOR THE EMPLOYER Carol Ann Witt
Counsel
Legal Services Branch
Management Board Secretariat
HEARING November 15, 2001.
DECISION
This is a grievance alleging that the Employer has breached a Memorandum of Settlement dated October 13, 2000 settling four grievances concerning discrimination and harassment of the grievor. The Union, in its statement of the case, alleges that during a mediation session which led to the settlement of the grievances, the grievor was given an assurance, by the Employer, that he would not be required to work with a certain individual in management. It is the Union’s position that, based on that statement, the grievor and the Union accepted the settlement that was under discussion. Subsequent to the settlement, the Union alleges that the grievor was required to report to the aforementioned management official.
The Union directs the Board to Item 8 of the Memorandum of Settlement which states as follows:
“The parties agree that Vice-Chair McKechnie shall remain seized to deal with any issues regarding the implementation or interpretation of this Memorandum of Settlement.”
The Employer raised a preliminary objection based on the jurisdiction of the Board to hear the Union’s allegation. It is the Employer’s argument that jurisdiction is limited to the aforementioned paragraph and provides only that I may deal with “implementation or interpretation” and that the Union has raised a new issue, which is contact with a supervisor. It is the Employer’s position that whether or not the issue of the grievor’s reporting relationship was discussed during mediation, that issue became irrelevant when the memorandum of settlement was signed containing no reference to that reporting relationship. Because there is no mention of the reporting relationship in the settlement memorandum, the Board is without jurisdiction to inquire into any statements made during mediation. The Employer referred the Board to: re Zehrs Markets and Retail Clerks Union, Local 1977(1984), 1984 CanLII 5169 (ON LA), 14 L.A.C. (3d) 379 (Barton); Re Domtar Sonoco Containers and International Woodworkers-Canada, Local 1-1000 (1992), 1992 CanLII 14547 (ON LA), 28 L.A.C. (4th) 11 (Thorne) and re Corporation of the town of Espanola and Canadian Union of Public Employees, Local 534 (1997) 1997 CanLII 25096 (ON LA), 61 L.A.C. (4th) 149 (Marcotte).
The Employer reviewed each of the terms of the Memorandum of Settlement. Item 1 provides for payment; Item 2 provides that the payment represents “full and final settlement of the four above–listed grievances”; Item 3 indicates that the investigation file is to be closed and not reopened nor referred to; Item 4 indicates that any reference to the investigation file will be removed from grievor’s personnel file and that the investigation file is to be sealed and destroyed in accordance with government policy; Item 5 states that the grievances are withdrawn; Item 6 states that the parties would not disclose the terms of the memorandum of settlement; Item 7 states that the grievor understood the settlement and was fully and fairly represented by his union and finally Item 8 is as stated above. The Employer argues that the Board cannot go beyond the terms of agreement and can only review its terms to ensure that they had been correctly interpreted and fulfilled. Because the reporting relationship is not mentioned in any way in the Memorandum of Settlement, it is the Employer’s view that the Union is requesting that a new inquiry be undertaken and this would be inappropriate and outside my jurisdiction. In fact, the Employer argues a further grievance has been filed by this grievor relating to discrimination and harassment and is proceeding through the grievance procedure which demonstrates that the grievor has another opportunity to discuss the very issues about which he is currently complaining.
The Union argues that the grievance referred to by the Employer is proceeding to the Grievance Settlement Board. As a result, the Employer should not object to the Union’s current request given that a hearing before the Grievance Settlement Board will occur in any event. It is the Union’s view that its