GSB# 2003-3443

UNION# 2002-0427-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Rittwage)

Union

• and -

The Crown in Right of Ontario

(Ministry of the Attorney General)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE UNION

Kristin Eliot

Eliot, Smith

Barristers and Solicitors

FOR THE EMPLOYER

Andrew Baker

Counsel

Management Board Secretariat

HEARING

May 4, 2004.

Decision

The grievor, Ms. Rittwage, alleges that the ministry has breached the confidentiality clause of the memorandum of settlement agreed to by the parties on April 28, 2003. Paragraph 7 of the memorandum provides:

7. The parties agree that the settlement and compensation payable to the grievor is a matter which is confidential. The grievor agrees that she shall not disclose the terms of settlement or value of the compensation except to immediate family members, financial or legal advisers, or unless compelled by force of law.

The parties also agreed in paragraph 10 that I remain seized of any dispute that might arise regarding the implementation of the settlement agreement. No oral evidence was tendered. The parties elected to proceed by documentary evidence and oral argument.

The Union’s Submission

The union claims that in implementing the memorandum of settlement another employee, Ms. King, became aware of the payments to Ms. Rittwage, pursuant to this settlement. Part of the agreement included reimbursement for vacation days used for sick leave. The settlement also allowed the grievor to take six union leave days by the end of 2003. The union conceded that Ms. King’s job included date stamping cheques received from core pay and that she normally reviews the cheques before forwarding them. The union also agreed with the employer that Ms. King is the person who would normally see the request for union days for pay purposes. The union maintained that Ms. King did see the cheque, and therefore had knowledge of the minutes of settlement, contrary to the agreement. Further, on balance of probabilities, the union argued that it is likely that Ms. King also knew about the union leave granted to Ms. Rittwage.

The union argued that by allowing Ms. King to process the payments and learn of the union leave, the ministry had breached the confidentiality clause of the April 28, 2003 memorandum of settlement. Further, given the circumstances of the original grievance which alleged a poisoned workplace, and that Ms. King was part of this workplace, it was not appropriate to allow Ms. King to implement the payment to the grievor. The union submitted that the board should find that the ministry breached the settlement, and that the appropriate remedy would be to order the ministry to pay the damages and give the union leave days provided under the settlement again. In support of its submission the union relied on OPSEU (Young) and Ministry of the Attorney General (2003) G.S.B. 2001-0660 (Abramsky).

The Employer’s Submission

The employer took the position that there had been no breach of the memorandum settlement. Ms. King is the designated administrator for pay in the office. Counsel submitted that it is Ms. King’s job to review paycheques for accuracy. Counsel noted that in order to implement the payment to Ms. Rittwage, Ms. King and others had to process the necessary paperwork. Counsel argued that none of this amounted to disclosure to a third party: it was merely implementation. The employer disagreed with the union’s position that Ms. King must have learned of the union leave granted to Ms. Rittwage under the settlement agreement. Counsel argued that there is no evidence before the board to support such a finding.

In summary, counsel argued that Ms. King acts as a senior secretary, handling confidential employee information. As part of her job the payment on the grievor’s cheque would have to be stamped, verified and forwarded to Ms. Rittwage. Thus there had been no breach of the minutes of settlement and no damages should be ordered.

Decision

Having carefully considered the submissions of the parties, I have concluded that there is no evidence to support a finding that the ministry breached the confidentiality clause of the April 28, 2003 settlement. For the most part the facts are not in dispute. It is clear that Ms. King normally processes pay cheques as part of her job duties. She receives them from core pay, checks them for accuracy and date stamps them, adding the time in her own handwriting. Ms. King stamped and wrote on Ms. Rittwage’s the “payment statement” of May 8, 2003, which included a payment made pursuant to the April 28, 2003 minutes. The payment is coded with “RT-GR SETA.” Whether Ms. King recognized this code or not, I do not know. The employer and union agreed that she would have recognized it as a payment made under a grievance settlement. With regard to the union days, the evidence is not clear. Assuming that she did see this, I am still not persuaded that the minutes where breached by the employer. As employer counsel pointed out, these payments must be processed under the normal procedures – and this was done here.

There may be cases where it is inappropriate for the standard procedure to be followed and where the employer ought to ensure that no bargaining unit employee in the grievor’s workplace (as opposed to at shared services) be involved in the processing. But the evidence here is insufficient to support such a finding. It is clear from the union’s submissions that Ms. Rittwage did not like Ms. King. However, there is no evidence to establish a “poisoned workplace.” Given the nature of the original grievance, it may have been better if only managers handled the implementation of the grievance settlement here. However, I am not convinced, in this case, that there is sufficient evidence before me to conclude that Ms. King’s handling of the information amounted to a third-party disclosure of the confidential memorandum of settlement.

For the reasons noted above the grievor’s complaint that the memorandum of settlement has been breached is hereby dismissed.

Dated at Toronto this 31^st day of January, 2005.