IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Clarke)

Grievor

and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

Mr. Ed Holmes Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Mr. Len Hatzis Counsel Management Board Secretariat

HEARING

February 11, 2003.

DECISION

Linda Clarke was denied Long Term Income Protection (LTIP) benefits for the period between November 1, 1998 and April 1, 2000. She wishes to pursue a “complaint” before the Joint Insurance Benefits Review Committee (JIBRC) under article 22.9.2 of the collective agreement. The employer contends a memorandum of settlement terminating the grievor’s employment bars her claim for benefits.

The memorandum of settlement was drafted by employer counsel and executed at a mediation-arbitration session, held on November 21, 2001, to resolve four grievances by Ms. Clarke. The grievances related to alleged discrimination and unjust discipline including dismissal. The grievor had an outstanding LTIP complaint at the time, but it was not mentioned in discussion between the parties on November 21.

The preamble to the settlement states:

In the matter of all outstanding grievances lodged by the grievor and the union during the grievor’s employment with the employer, the parties herein agree to the following terms as full and final settlement of all outstanding grievances without precedent and prejudice as follows …

The first four paragraphs of the memorandum address the grievor’s status as an employee:

The employer agrees to rescind the dismissal letter dated November 8, 1999.
The parties agree that the grievor has been placed on a leave of absence without pay for the time period of October 14/98 to November 21, 2000.
The employer agrees to pay the employer and employee portions of the grievor’s pension contributions … for the above mentioned leave …
The grievor acknowledges that she will be declared surplus effective November 21, 2000 ….

The remainder of paragraph 4 and paragraphs 5 through 10 provide for the grievor to receive various sorts of compensation: approximately one years’ pay; an additional $24,500 for lost income; and another $24,500 for relocation expenses, retraining expenses and general damages.

The memorandum of settlement contains two release clauses:

Without limiting paragraph 13, the parties agree that as consideration for the payments set out in this memorandum of settlement, the grievor shall have no additional claims for payment of salary, benefits, severance pay, termination pay, or payments of any kind arising from her employment with the employer.
In further consideration of the payments in this memorandum of settlement, the grievor agrees that these payments satisfy all claims related to her employment and hereby releases and forever discharges the Crown in right of Ontario, and the employer, its servants, agents and directors of and from all actions, causes of action, claims and demands of every nature and kind arising out of or in any way related to her employment, or release thereof, including but not limited to all claims under the Ontario Human Rights Code and the Employment Standards Act.

Union counsel contended the settlement was structured so as to preserve the grievor’s LTIP complaint. In this regard, counsel noted paragraph 1 reinstates her to employment and paragraph 2 places her on unpaid leave for a period commencing before, and ending after, the interval for which benefits are sought. Relying upon the preamble’s reference to grievances, the reference to two statutes in paragraph 13, and the distinction drawn in the collective agreement between inarbitrable LTIP complaints and arbitrable grievances, counsel submits the release clauses bar grievances and statutory claims but not the LTIP complaint. As the memorandum of settlement was drafted by the employer, union counsel argued any ambiguity should be resolved in favour of the grievor. Noting her LTIP complaint predates the memorandum of settlement, counsel suggested the words “no additional claims” in paragraph 12 should be read to mean “no new claims.”

Employer counsel relies upon paragraph 12 saying the grievor “shall have no additional claims for … benefits.” I was reminded LTIP is governed by article 42 falling within Part B of collective agreement under the general heading of “Employee Benefits for Full-Time Civil Servants.” Counsel argued the word “claims” in paragraphs 12 and 13 is broad enough to encompass both “complaints” and “grievances” under the collective agreement. As to the union’s argument that unpaid leave was granted to preserve the grievor’s LTIP complaint, employer counsel contended an employee cannot be entitled to LTIP benefits during a period of unpaid leave, when an employee is not expected to work, because such benefits are meant to replace wages lost when disability prevents an employee from working as expected. Counsel also noted the reference to two statutes in paragraph 12 is preceded by the words “including but not limited to.”

III

The release clauses in the memorandum of settlement leave no doubt that the grievor was waiving much more than the claims asserted in her outstanding grievances. Paragraph 12 states “as consideration for the payments set out in this memorandum of settlement… the grievor shall have no additional claims for … benefits or payments of any kind arising from her employment with the employer.” The most reasonable interpretation of “additional claims” is claims for benefits or payments in addition to the “payments set out.” The word “claim” is sufficiently broad to include both complaints and grievances, just as the word “benefits” is sufficiently broad to include LTIP benefits. On a literal reading, paragraph 12 bars the LTIP compliant from proceeding to JIBRC.

In paragraph 13, the grievor releases the employer from “all … claims … of every nature and kind in any way related to her employment.” Here too a literal construction indicates the LTIP complaint is foreclosed. The closing reference in this paragraph to two statutes does not assist the union, because the preceding words “including but not limited to” clearly indicate this reference was not intended to abridge the scope of the release.

The general structure of the memorandum of settlement does not support a different interpretation of paragraphs 12 and 13. By reinstating the grievor and placing her on an unpaid leave of absence, the parties provided at most an ambiguous indication of their intentions concerning her LTIP complaint. In contrast, paragraphs 12 and 13 contain a very clear indication that this complaint is barred.

I conclude the settlement precludes the grievor from pursuing her claim for LTIP benefits before JIBRC.

Dated at Toronto the 11th day of March 2003.

Ontario Public Service Employees Union (Clarke) v. The Crown in Right of Ontario (Ministry of Natural Resources), 2003 CanLII 52860

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Grievor