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. At the commencement of the hearing, 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 the instant grievance.

At the request of the parties, a “bottom line” decision was issued on August 16, 2005 wherein the Board held that the December 13, 2004 document was a valid and binding settlement of the grievor’s first grievance, which barred a subsequent grievance with respect to the same discharge. Accordingly, the Board upheld the employer’s motion that it was without jurisdiction to deal with the second grievance. This decision is intended to set out the reasons for the Board’s decision.

The following facts are not in dispute. By letter dated December 10, 2004, the grievor’s employment was terminated. The grounds for termination were reviewed in detail in the letter, but are not relevant here. The same day the grievor filed a grievance alleging that she had been unjustly terminated, and seeking reinstatement and compensation for all lost monies. On December 13, 2004 the following “Memorandum of Agreement” was executed:

MEMORANDUM OF AGREEMENT

Kellie Smith

Name

Correctional Officer, Brantford Jail

Classification/Work Location

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

(The Union)

• AND -

THE CROWN IN RIGHT OF ONTARIO

(Ministry of Community Safety and Correctional Services -

Correctional Services Division) (The Ministry)

Whereas the Parties agree to settle all matters arising out of during the course of Ms. Kellie Smith’s term of employment and the termination of such employment, the parties hereby agree to the following minutes of settlement:

1. This agreement is made without admission of liability or wrongdoing by any party, and any liability is expressly denied.

2. The Parties agree that this settlement is without precedent or prejudice to any other matters between the Parties.

3. The Parties agree that Ms. Smith’s (sic) will resign effective the date of the signing of this agreement.

4. The Ministry agrees to provide the employee with sixteen (16) weeks notice. Said notice will be based on the average hours worked over the three month period leading up to the signing of this agreement. Notice will be subject to statutory deductions and will be payable within 30 days of the signing of this agreement.

5. The Ministry agrees to a net payment to Ms. Smith of $1,500.00 for education and related expenses. The net payment will be made as soon as is possible and will be sent by cheque to Ms. Smith’s home address of (address deleted).

6. The Union and Ms. Smith agree that all grievances, claims, complaints and actions arising out of Ms. Smith’s employment with the Ministry including all complaints before the Ontario Labour Relations Board and the Workplace Safety and Insurance Board and the Ontario Human Rights Commission and the Grievance Settlement Board.

7. Ms. Smith agrees not to seek reemployment with the Ministry of Community Safety and Correctional Services.

8. Ms. Smith agrees that she has been fully informed of and understands the consequences of this settlement, enters into it voluntarily, and further agrees that the Union has fairly and properly represented her.

9. Payment will be received no later than December 30, 2004.

Dated this 13 day of December, 2004

“Signed illegibly” “Signed illegibly” “Signed illegibly”

For the Grievor For the Union For the Ministry

There is no dispute that the grievor had union representation preceding the execution of the Memorandum, which was signed by the grievor, an employer representative and a union representative. It is also agreed that the employer implemented the undertakings it made in the Memorandum, including the payments of the monetary amounts under paragraphs 4 and 5.

The instant grievance was filed on January 6, 2005. The statement of grievance therein states: “I grieve that I have been dismissed from my contract position and that it was not my intention to quit or resign my position. Decision to resign was made under extreme stress”. In this subsequent grievance also, the grievor sought reinstatement, among other remedies.

The union did not dispute that both grievances related to the same discharge. However, the union argued that in the particular circumstances of this case the Memorandum should not be held to bar the grievor’s right to grieve her discharge by a second grievance.

The union stated that it will lead evidence to establish the following. In March of 2004 the grievor’s 3 young children had been taken away by the Childrens Aid Society. In August 2004, her husband left her. In and around December 2004, the grievor had difficulty getting access to see her children, or even having telephone contact with them. Although the children were returned to her in January 2005, at the time she was discharged, she had no idea when she would get them back. She was therefore under tremendous stress. It was her determination at the time that if the record showed that she had resigned from her job, rather than been terminated, her chances of getting the children back from the Childrens Aid Society were better. This belief greatly influenced her decision to agree to the terms of the Memorandum of Agreement.

The union submitted that once the foregoing facts are established, it would lead the Board to conclude that at the time the grievor agreed to and signed the memorandum, she did not have the capacity to make a rational and sound decision.

The union made two submissions in support of its position that the second grievance was arbitrable. Mr. Leeb submitted that the union did not dispute that an agreement entered into between the employer and the union is, as a general matter, binding. However, he contended that it was not clear what the memorandum purported to do. He submitted that the memorandum should be treated as an agreement to resign on the part of the grievor, as opposed to a settlement of a grievance. On that basis he submitted that the law is clear that a quit or resignation is not given effect to, in circumstances where the evidence is that the decision to quit or resign was made under stress and duress. He urged me to hear that evidence and determine whether or not the grievor had the capacity to make a voluntary decision at the time she signed the Memorandum.

The employer was opposed to the Board hearing any evidence of duress on the part of the grievor. It was submitted that the only issue the Board had to determine was whether or not the “Memorandum of Agreement” was a settlement of the grievor’s first grievance. Once it is found to be such a settlement, it constitutes an absolute bar to any subsequent grievance challenging the same dismissal. Unlike in the case of an individual’s decision to quit or resign, personal circumstances of a grievor are irrelevant in the case of a settlement of a grievance.

A simple reading of the Memorandum indicates that it is a very poorly drafted document. For example, it does not identify a particular grievance. Some sentences, for example para. 6, are disjointed or incomplete. However, that is not unusual because these documents are often drafted in haste and by untrained persons. Despite these deficiencies, there can be no doubt that the document in question, when read as a whole, was intended to be and is, a settlement of “all matters arising out of (sic) during the course of Ms. Kellie Smith’s term of employment and the termination of such employment”, including the grievance the grievor had filed 3 days earlier. The intended terms of resolution are also clear. Therefore, any submissions made by the union in support of the board’s jurisdiction to hear the subsequent grievance, must be considered in that light. It is not at all uncommon for grievance settlements to include a term wherein the employer undertakes to change the termination to a resignation. The inclusion of such a term does not convert the document from a settlement of a grievance to a mere agreement by the grievor to quit or resign.

Mr. Leeb referred me to a number of GSB decisions incorporating Minutes of Settlement of grievances, where terms have been included wherein the grievor explicitly acknowledges that he/she was signing the minutes “voluntarily and without duress”. It was submitted that this suggests that the parties considered the absence of duress on the grievor to be a necessary condition for the validity of the Minutes. I disagree. First, there is no evidence as to why and for whose benefit such term was included in the particular case. It is just as possible that the term was included for the benefit of the union to protect it against later claims by the grievor that he or she was unduly pressured by the union to agree to the minutes. Second, and in any event, the issue of whether duress of the grievor invalidates a grievance settlement is a matter of law. The law cannot be gleaned from what the parties may or may not have included in particular documents.

In the Board’s view, whether the grievor’s signature was placed on a grievance settlement under personal stress or duress is irrelevant to the legal validity of Minutes settling a grievance. This is because, in the board’s view, a grievor’s signature is not a necessary condition for the validity of Minutes settling a grievance. In Re Smith/Smith, 1278/99 (Harris) no formal Minutes of Settlements were signed off. However, a Board decision incorporated the terms of settlement the parties had arrived at following mediation, and made an order in accordance with those terms. One of the grievors subsequently applied for judicial review of the Board order. The Court in a unanimous judgement released May 16, 2003 dismissed the application on the grounds that an individual grievor had no standing to seek judicial review. The Court wrote:

12the dispute arose out of Mr. Smith’s position as an employee and as a result of the purported termination of his employment. The “management rights” clause in the collective agreement gives management the power to hire, to layoff or to dismiss. This is what it said it was doing. Whether it was entitled to do so, or whether if it were, it did so properly, are matters that fall under the collective agreement for grievance purposes and can only be pursued by the Union bargaining agent.

13Thus, the issues were properly before the GSB. Had there been a hearing that Board would have been entitled to determine whether the Assistant Deputy Minister had properly delegated authority in purporting to dismiss Mr. Smith and, if not, what consequences should follow from that. The Board in such circumstances may have decided the purported termination was void ab initio. We do not think such a decision would have deprived the GSB of “jurisdiction” however. Rather, it would simply follow that there was no need to deal with the grievance on its merits as the purported dismissal was void from the outset. The Board has authority to determine its own jurisdiction. The determination of those questions would still fall within the purview of a grievance under the collective agreement concerning the termination of Mr. Smith’s employment.

14In this case, however, the GSB was not required to make such a decision. The Union and the Employer reached a settlement and the Vice-Chair of the Board, who acted as mediator in respect of the negotiations was justified in the circumstances in assuming that role and, once the settlement was reached, in incorporating its terms into an order as requested by the parties.

15As a member of the bargaining unit whose complaint regarding his purported termination was properly pursued by the grievance process set out in the collective agreement and before the Board, Mr. Smith is bound by that settlement and order. Only the parties to the collective agreement may pursue that employment-related grievance.

16Accordingly, Mr. Smith has no standing to pursue this application for judicial review. It is therefore dismissed.

The foregoing judgement supports the proposition that only the union can pursue a grievance under the collective agreement, and that once the parties to the collective agreement, that is the employer and the union, settle a grievance, the individual grievor has no standing to challenge the settlement. If the union solely can pursue a grievance, it logically follows that it also has the authority to settle such grievance. The court’s decision that a grievor had no standing to challenge a settlement through an application for judicial review is consistent with the proposition that the grievor is not a necessary party to a grievance settlement. In the present case the union did settle and has not resiled from its decision to settle. Thus, the necessary parties to the grievance, the union and the employer, have settled the grievance. That settlement is binding on the grievor.

This, of course, does not mean that a union has no responsibility towards the grievor. The Labour Relations Act requires that in representing employees a union must not act in a manner that is arbitrary, discriminatory and in bad faith. In the present case there is no allegation that the union failed to comply with this duty of fair representation. Even if there were such allegations, any complaint in that regard must be directed to the Ontario Labour Relations Board. If such a complaint is successful before the Labour Relations Board, it will be up to that Board to fashion a remedy for the employee as it deems fit.

In summary, the Board finds that the grievor’s initial termination grievance was settled. The settlement is valid and binding regardless of the validity of the grievor’s signature, since it was duly signed by the necessary parties to the grievance, namely the employer and the union. It follows that the grievor was not subsequently entitled to file a second grievance over the same termination. The Board is without jurisdiction over the instant grievance, and it is hereby dismissed.