GSB# 2004-3434

UNION# 2005-0247-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Smith)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Andrew Baker Counsel Management Board Secretariat

HEARING

August 8, 2005

CONFERENCE CALL

August 11, 2005.

Decision

This decision pertains to a discharge grievance dated January 6, 2005 filed by Ms. Kellie Smith, a casual correctional officer. The employer moved that the Board lacked jurisdiction to deal with the grievance because a prior grievance dated December 10, 2004 filed by the grievor with respect to the same discharge had been settled by minutes dated December 13, 2004 signed by the employer, the union and the grievor.

The union’s position was two-fold. It was submitted that the December 13, 2004 document titled “Memorandum of Agreement” was not on its face a typical settlement of grievance, and ought not be treated as such. Alternatively, the union submitted that in any event such settlement ought not bar the grievor’s right to grieve her discharge because at the time she signed it she was under such stress due to her personal circumstances, that she signed it under “duress”. The union urged me to hear the evidence with regard to “duress” and determine, whether in the circumstances, the settlement is binding on the grievor. The employer opposed any inquiry into the issue of duress, and urged the Board to uphold the settlement document as a complete bar to any further grievance.

The parties requested that I issue a “bottom-line” decision with reasons to follow.

Having carefully considered the parties’ submissions and authorities cited, I find that the December 13, 2004 document is a valid and binding settlement of a prior grievance with respect to the grievor’s discharge. It bars a further grievance. Therefore, the Board is without jurisdiction to deal with the instant grievance.

In the result, the employer’s motion is upheld and the grievance is dismissed.

Dated this 15^th^ day of August, 2005 at Toronto, Ontario