GSB# 2003-2259

UNION# 2003-0701-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Granholm)

Union

• and -

The Crown in Right of Ontario (Ministry of Tourism and Recreation)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Jim Gilbert Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Sean Kearney Counsel Management Board Secretariat

HEARING

March 9, 2005.

Decision

In a grievance dated April 17, 2003, Mr. K. Granholm alleges that the Employer reneged on an agreement reached on November 26, 2002. In particular, the Union takes the position that during a grievance meeting on November 26, 2002, the Employer agreed, among other things, to give Mr. Granholm an interview for a position which the parties anticipated would be posted in the future. The Employer disputes that it agreed to interview Mr. Granholm for an upcoming position. However, the Employer takes the position that even if it did agree to an interview, the Union cannot enforce this verbal agreement, given that there is no reference to it in the written settlement which was subsequently executed. The parties agreed to make submissions based on the Union’s best case. In other words, the parties agreed to assume as true that the Employer agreed to give Mr. Granholm an interview during a grievance meeting held on November 26, 2002, and counsel made submissions as to whether such a verbal commitment could be enforced in these circumstances. The grievance dated April 17, 2003, will be dismissed if the Employer’s motion succeeds. If the Employer’s motion is unsuccessful, it will then be necessary to hear evidence about whether the Employer agreed to give Mr. Granholm an interview for the position during the November 26, 2002, grievance meeting and the implications of such an agreement.

Mr. Granholm started with the Employer in September 1999 and was employed as a Manual Worker. By letter dated July 22, 2002, Ms. E. Nemeth, the General Manager of the Old Fort William Historical Park (“the Park”), advised Mr. Granholm that the position of Manual Labourer was being eliminated and that he would not be recalled to the Park. Mr. Granholm responded by grieving that he had been wrongly terminated. In attendance at the grievance meeting on November 26, 2002, was Ms. J. Pilley, a Union representative, Mr. Granholm and a designee for the Employer. By the conclusion of this meeting, they had agreed on the terms of settlement which included, for our purposes, an agreement that Mr. Granholm would be given an interview for a specific job that was to be posted in the future. For reasons not yet disclosed, the parties did not execute a written settlement on November 26, 2002. The Memorandum of Settlement (“the Memorandum”) relating to the resolution of Mr. Granholm’s grievance is dated December 5, 2002, and was executed by Ms. Pilley, Mr. Granholm and the Employer’s designee. I have decided not to reproduce the complete text of the Memorandum, because it is unnecessary to do so and because it contains a confidentiality provision. I simply note that the Memorandum contains four terms, with a preamble that reads: “The parties agree to the following terms and conditions as full and final settlement of the above captioned grievance and all related matters.” Missing from the Memorandum is any reference to an agreement by the Employer to give Mr. Granholm an interview for an upcoming position.

The specific position which was the subject of the agreement on November 26, 2006, was posted eventually. Mr. Granholm applied for the position, but he was not given an interview. This led to Mr. Granholm filing his grievance alleging that the Employer reneged on the agreement reached on November 26, 2002.

The position of each party is quite straightforward. The Employer argues that only the Memorandum constitutes the agreement of the parties and that any matter agreed to at the November 26, 2002, grievance meeting which is not reflected in the Memorandum is irrelevant and cannot be enforced. The Union, on the other hand, argues that in order to determine what constitutes the terms of the agreement, one must consider not only the Memorandum, but also what the parties agreed to at the grievance meeting.

I was provided with in excess of twenty decisions to consider and, although they provide a useful review of how settlements are treated, the decisions are not particularly helpful with respect to the issue that arises in this case. Many of them deal with the importance of protecting settlements reached by the parties, but each party before me agreed that protecting settlements is important. What the parties disagree on is what the enforceable terms of the settlement are in this case.

It was the position of the Union that Re Ontario (Ministry of Revenue) and O.P.S.E.U. (Anderson), G.S.B. No. 213/87 (Kates) is directly on point. The parties in that matter resolved a number of job posting grievances, with the employer agreeing to repost the positions at issue. Three of the grievors were successful in the subsequent competition and the Union then claimed that they were entitled to retroactive pay for the period they were denied the position. The employer denied that the grievors were entitled to compensation and relied on an alleged oral agreement negotiated between counsel during their settlement discussions. The employer alleged that counsel had agreed orally that there would be no retroactive compensation. The circumstances in that case are not dissimilar from those in the case at hand. The employer attempted to rely on an oral agreement which is not reflected in the written settlement, just as the Union does before me. The panel heard the evidence and determined that there was no oral agreement between the parties as alleged by the employer. It appears that no party took the position, as the Employer does before me, that a party could not rely on an oral agreement in the face of a written settlement. In my view, this decision does not support the position advanced by the Union because the panel was not required to decide the issue which the Employer now raises before me.

The purpose of reducing the terms of a settlement to writing is to define clearly the basis upon which a dispute is resolved. Parties may take various positions during settlement discussions, but a written agreement will generally be viewed as encompassing the entire agreement. Settlements in labour relations matters are properly viewed as sacrosanct and thus arbitrators are loath to allow a party to go behind the express terms of a settlement. However, there may be circumstances which could compel the conclusion that the agreement reduced to writing does not truly reflect the complete mutual agreement of the parties. To fail to give effect to the true agreement of the parties is also a matter which undermines the integrity of the process, the sacrosanct nature of settlements and the importance of ensuring that settlements will be respected. In order to dismiss Mr. Granholm’s grievance as requested by the Employer, I would have to conclude that there is no legal construct within which an oral agreement to give an interview could have any validity in these circumstances. I am not prepared to reach such a conclusion. In my view, it is appropriate to hear the evidence on whether the parties agreed on November 26, 2002, that Mr. Granholm would get an interview for a position that was soon to be posted and their intentions in relation to whether such an agreement was to prevail notwithstanding the lack of reference to it in the Memorandum. The hearing of this matter will continue on Friday, April 22, 2005, as previously scheduled.

Dated at Toronto, this 22^nd day of March, 2005.