GSB# 2003-2769, 2003-2770, 2004-0069

UNION# 2003-0542-0014, 2003-0542-0013, 2004-0542-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Rolfe)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Felix Lau Counsel Ministry of Government Services

HEARING

July 11, 2006.

Decision

Ann Rolfe, a Client Services Associate in the Family Responsibility Office of the Ministry had filed seven grievances as of the first day of hearing into these matters on November 1, 2005. At the conclusion of opening statements the parties agreed to attempt to mediate their differences and the afternoon was spent to that end. While an initial attempt was made to resolve all of the outstanding matters, when it became apparent this was impossible the parties narrowed their discussions to a few particular grievances. At the end of that day the Employer made an offer to settle three grievances. This proposal was communicated to the Union and the grievor. The grievor indicated that she wanted a few days to consider the offer and that was agreed.

At the second day of hearing the Employer raised a preliminary matter. It was the Employer’s view that three of the grievances had been resolved and asked this Board to so declare. The Union and the grievor disagreed and the parties provided evidence and made submissions in this regard. This decision deals only with the narrow matter of whether those grievances are resolved.

The parties provided an agreed statement of fact as follows:

1. The Parties attended at the GSB on November 1, 2005, to address a number of grievances filed by the grievor.

2. The Union prepared and presented a book of documents which included tabs 1 through 7 – the grievances which were the subject matter of the arbitration.

3. On November 1, 2005, the parties engaged in mediation with a view to attempting to settle the grievances. The mediation was conducted with the assistance of Vice-Chair Briggs.

4. During the mediation the Employer made a verbal offer to settle 3 of the grievor’s 7 grievances. The offer was made and recorded in the presence of vice-Chair Briggs.

5. The offer was not reduced to a formal written memorandum of settlement at that time.

6. The offer consisted of the following point form notes:

• $2000 all in with statutory deductions

• Full and final resolution

• Without liability of wrongdoing

• Confidential

• Release clause

• Without prejudice and precedent

• Grievances #1, 2, 4 settled/withdrawn

The grievor requested three days during which she could consider the offer. The Employer offered 2 days. The grievor was to advice Union Counsel and Union Counsel was to advise Employer Counsel of her acceptances/rejection by 5 pm. on November 3, 2005.

7. The Union did not advise the Employer of the grievor’s acceptance or rejection by the stated deadline.

8. On November 4, 2005 Union Counsel called Employer Counsel to request an extension to the deadline. An extension was granted via telephone.

9. Union Counsel later called Employer Counsel on November 4, 2005 wherein the following terms of settlement were discussed and accepted:

• $2000 less statutory deductions

• Final and full resolutions of pay deduction grievances 1, 2, 4

• Without admission of wrongdoing or liability

• Confidentiality clause

• Release clause without prejudice and precedent

• Grievances 3,5,6,7, stay

10. Employer Counsel stated that written Minutes of Settlement would be drafted and sent for execution.

11. Union Counsel received a faxed Minutes of Settlement November 9, 2005 executed by Lyn Steele dated November 8, 2005.

12. The Minutes of Settlement were sent to the grievor and were received by the grievor on November 15, 2005.

13. The grievor issued a letter dated November 25, 2005 addressing her reasons for not executing the Minutes of Settlement.

14. Employer Counsel put Union Counsel on notice that the Employer took the position that the grievances 1, 2, and 4 were settled and it would advance a motion before Vice-Chair Briggs to address the issue.

The draft Minutes of Settlement stated:

Without prejudice and without precedent, the parties agree to full and final settlement of the grievances of Rolfe, Ann, GSB#2003-2769, 2003-2770; 2004-0069 dated July 3, 2003 (OPSEU #203-0542-0014); date July 3, 2003 (OPSEU #2003-0542-0013) and January 6, 2004 (OPSEU#2004-0542-0002) on the following terms:

1. The Grievor and the Union hereby agree that the above-noted grievances are settled and thus withdrawn, and waive any and all other complaints, claims, grievances relating to the circumstances giving rise to this grievance, not to be re-filed in this or any other forum

2. The Employer agrees to pay the Grievor $2,000 less statutory deductions. The Employer agrees to make reasonable efforts to pay the above amount to the Grievor within 30 days of the signing of this settlement by all parties.

3. The Parties agree that this settlement does not in any way constitute an acknowledgement of liability of any wrongdoing on the part of the Ministry of Community and Social Services

4. The Grievor and the Union agree to keep the terms of this settlement strictly confidential, except as required by law in the implementation of this Memorandum of Settlement.

5. In consideration of the above, the Grievor and the Union hereby release the Employer, its agents, employees representatives and assigns from any and all claims, grievances or complaints or any nature at common law or pursuant to statute, arising out of the above grievances. Further, this release applies to any related claims under the Ontario Public Service Act, the Ontario Human Rights Code, the Ontario Employment Standards Act, Ontario Labour Relations Act, the office of the Ombudsman, and any other legislation.

6. The parties agree that Vice-Chair Briggs will remain seized of any disputes regarding the implementation or interpretation of this Memorandum of Settlement.

The November 25, 2005 letter written by the grievor to her counsel stated the following:

I am advising you that I have rejected the employers’ settlement.

As you know, the grievances pertain to the monies the employer deducted from my salary, in an illegal manner.

When you first called me on November 4^th, 2005, you advised me it was in my best interest to settle these grievances pertaining to the money. You also dictated the settlement to me over the phone and I have since had the opportunity to peruse your information. I have also discussed the employer’s settlement office with my outside legal consultant and my legal counsel. I reject the offer for the following reasons:

1. Your dictation of the settlement is not consistent with the actual document drawn up by the employer. Your dictation of the settlement did not include the “employers heavy duty protection clauses”.

2. I received the employer’s “drafted” actual minutes of settlement on November 15, 2005, signed by Lynn Steele and dated November 4, 2005. Furthermore, the document is not the original binding document and appears to be an “eighth generation Xerox” copy: therefore, how may other copies are floating around?

3. The employer’s settlement was signed by Lynn Steele who is one of the accused persons mentioned in my grievances and Human Right Violations.

4. The employer’s settlement was written in the interest of the employer it was not written as an offer in good faith, or in an attempt to resolve my issues in a fair equitable manner. The settlement was written to protect the employer against liability and as a protection for their inappropriate actions and behaviour.

5. During out meeting with the arbitrator on November 1, 2005, the employer showed up with five “musclemen” which I took as an intimidation tactic. One of the employer’s representatives was Lynn Steele, who is one of the accused.

6. On November 3, 2005, I found out that my benefits and life insurance coverage had been suspended since April 1, 2005 by the employer and without notice to me. I discussed this with my legal counsel who informed me that it was the employer’s responsibility to notify me and give me the opportunity to keep up payment so that I would have coverage for my benefits and life insurance policy. It is illegal and liable not to have notified me.

When I found out this information I had to quickly call the Payment and Benefits Section. They informed me that they had prepared an information package but were told by the employer not to send it or notify me. I have since had to pay back $2195.97 so that my benefits and life insurance coverage could be re-instated. I have also been informed that I would have to pay approximately $200.00 for December 2005 and subsequent months. This egregious/liable action has caused me great financial hardship, and additional mental stress.

Furthermore, I have been advised, by Shared Services, Pay & Benefits that it is their policy not to provide a receipt for payment of these funds. Where else would someone pay money and not get a receipt showing payment, as protection. The CCRA have informed me that without a receipt I will be unable to claim the payments. The Canadian Life and Health Insurance Association have informed me that the employer has a moral and ethical responsibility to inform employees when insurance coverage has been suspended.

I was hospitalized on July 6^th, 2005 with suspected cardiac problems that ended up being a severe anxiety attack. The prospect for my family, in the event that I had died, given that my benefits and insurance coverage had been suspended, could have had devastating consequences.

The money the Employer has offered to me in their settlement does not even begin to cover the damages the employer has caused me.

I find the employer’s offer was not only offensive to me, but a further attempt to bully and belittle me. For some reason the employer believes they are not responsible for their actions. They are arrogant to feel that they are above and beyond the parameters or consequences of their inappropriate behavior, actions, and breaking the law.

The employer seems to think that it is okay to lie, bully, cheat, steal, commit fraud and violate my rights; therefore, I have decided I have had enough!

I am the victim here, not the employer.

It is my belief the employer has no intention of resolving this matter or any of my grievances. It is also my belief that the employer is responsible for the Insurance Company denying my Long Term Disability even though my claim is valid and my doctors have provided all of the required medical documentation and information.

In fact, all the employer has ever done is display “vindictive behaviour and actions” towards me. They have cut off my source of income, they suspended my benefits and life insurance policy, they have threatened to fire me, they have taken away money from me for the last few years, and they have attempted to bully me into resigning without a pension.

I have had enough; therefore; please note: I have decided to tell my story to the media and the public. We will see how the media and the public perceive another story involving the government’s abuse of power, stealing, bullying and threatening their employees, and using taxpayer’s money to try and cover up their crimes. You all seem to forget I am not only an employee but a taxpayer as well.

Despite the employer’s request in their settlement, I will not withdraw my Human Rights Complaint filed with the Human Rights Commission, as my Human Rights have been and continue to be, violated.

In fact I am going to file “unfair labour practices” against the employer and take any other action, that is necessary.

I want all of my grievances settled once and for all, and in my favor. I am the victim not the employer, and it is about time the employer realizes that, and takes responsibility for their actions and what they have done to me by their inappropriate behavior.

Copies of this letter were sent to various institutions and individuals including the Attorney General, the leader of the Provincial New Democratic Party and the Premier of Ontario.

The three grievances at issue stated the following:

Grievance #1

I grieve that my rights have been violated specifically but not exclusively of Article 2 and 49 of the collective agreement by being denied a discretionary day as requested for April 4, 2003.

I request to be made whole with full redress

Grievance #2

I grieve that Management is acting in an arbitrary and discriminating manner (Article 2.1 and Article 3) namely but not exclusively and in bad faith by treating me differently which constitutes violation of the Collective Agreement.

I further grieve that Management has acted in an unsubstantiated and unfounded manner, without cause and without proper notice

I request full restoration with interest of the 18.49 hours deduced from my pay on 22/05/03 for unsubstantiated and unfounded reasons, without cause and without proper notice. To cease and desist all discriminatory practices against myself. Full redess.

Grievance #4

I grieve harassment by the Employer and violation of Article 2, 3 and 9 and any other applicable parts of the Collective Agreement. I grieve that Management acted unreasonably and in bad faith.

I request full redress to be made whole, not limited to $250,000; pain and suffering; apology; cease and desist of harassment and return to regular work, location and repayment of all monies deducted from my paychecks dated December 4, 18 and 31 2003.

The grievor gave evidence regarding this motion. During this testimony she spoke of a faxed message that she sent to Union Counsel on November 4, 2005. That message was put into evidence and it stated:

Re: Settlement of Grievance Nos. #1, #2 & &4 – November 1, 2005.

Further to my telephone conversation with you this morning, November 4, 2005 at 10:05 a.m., I advise you to try to reach agreement on the terms proposed by the Employer as follows:

1. Payment of $2,000.00 less statutory deductions relating to the 61.70 hours deducted from my pay stubs;

2. full and final resolution of pay deduction grievances identified in Grievances #1, #2, & #4;

3. Without admission of wrongdoing or liability by the Employer;

4. Confidentiality Clause:

5. Release Clause Without Prejudice and Precedent;

6. Grievances #3, #5, #6 & #7 to stay.

Thank You.

In her evidence in chief, Ms. Rolfe stated that the letter she wrote on November 25, 2005 to her counsel addressed her all of her concerns. When questioned further in cross-examination she explained that her counsel had dictated the terms of the Employer’s offer for settlement to her in a telephone discussion. She conceded that the terms dictated to her were consistent with paragraph 9 of the Agreed Statement of Facts.

Ms. Rolfe later testified that she didn’t understand the terms at the time because she was “in a bad way” both financially and emotionally and therefore she couldn’t “take it all in”. In re-examination the grievor explained that she has been on Long Term Insurance Protection which was effective March 1, 2005 due to stress and disabling anxiety. She was taking anti-depressants at the time of the settlement discussions and therefore it the situation was “tough” to assimilate the information. She said that it was not until she got the November 11, 2005 document that she realized there would be no possibility that she would be able to refer to the issues raised in grievances #1, #2 and #4 during the course of the litigation of the other grievances and that she was not prepared to relinquish her rights under the Human Rights Code or Employment Standards Act to do so. She testified that “impact was not known” to her until she received the actual Memorandum of Settlement.

EMPLOYER SUBMISSIONS

The Employer seeks a finding that there was an agreement on the three grievances at issue and requested an order that no evidence will be heard regarding these matters. The Employer asserted that the terms agreed upon by the parties were the very terms that were discussed during the day of Mediation. There were no new provisions that might confuse or be unclear to the grievor. She left the mediation session knowing the terms of the Employer’s offer and it was precisely those terms that the parties agreed upon.

Mr. Lau, for the Employer, submitted that there was no dispute between the parties that Mr. Holmes, counsel for the Union, had the authority to make a deal. Therefore, after the discussion between Mr. Holmes and counsel for the Employer wherein he disclosed that the grievor had agreed upon the terms of the Employer’s offer, there was a deal between the parties regarding three of the seven grievances.

It is now trite law, the Employer contended, that a binding agreement between parties does not have to be in writing. The evidence clearly reveals that the behaviour of the parties after the mediation of November 4, 2005 was consistent with parties who have reached a deal. Other established principles apply in this instance such as the fact that there was no need for the deal to be actually struck at a grievance or mediation meeting; the representation can be made by a person in authority and not the grievor; and new information coming to light after a deal has been agreed upon is not sufficient for a party to resile from the agreement.

The Employer relied upon Re Vancouver (City) v. Canadian Union of Public Employees, Local 15 [2004], B.C.C.A.A.A. No. 287 (Beattie); Re Concord Confections Inc. v. Bakery Confectionery and Tobacco Workers’ International Union, Local 264 (Bobotan Grievance) [1999], O.L.A.A. No. 633 (Bendel); Re The Crown in Right of Ontario (Ministry of Health and Long-Term Care) and The Association of Management Administrative and Professional Crown Employees of Ontario (Globerman) (May 7, 2003) GSB#0901/01 (Briggs); Re The Crown in Right of Ontario (Ministry of the Environment) and Ontario Public Service Employees’ Union (David Smith/Robert Smith) (December 15, 2000) GSB#21278/99 (Harris); and Re Smith v. Ontario Public Service Employees Union [2003], O.J. No. 2139 (Ont. S.C.J.).

UNION SUBMISSIONS

Mr. Holmes, for the Union, reminded the Board that the grievances at issues concern allegations of improper pay deductions and, if upheld, would have a monetary value of less than two thousand dollars. It is evident from the grievor’s November 25, 2005 letter that she was concerned she would not be free to continue to press her claim with the Human Rights Commission regarding these matters. She obviously thought that the agreement was that the Employer would pay her two thousand dollars in exchange for her monetary claims but she would not be precluded from raising these matters at a later point before this Board as well as before the Human Rights Commission.

When pressed regarding whether the Union was of the view that the Memorandum of Settlement was contrary to the terms set out at paragraph #9 of the Agreed Facts, Mr. Holmes stated that it certainly was the grievor’s position is that the document is contrary to the deal that was agreed upon verbally by the parties.

The Union made clear that the grievor’s stress disability is not, as suggested by the Employer, merely a “convenient excuse” for her claim that there was no agreement between the parties. Her illness has been longstanding and has been known to the Employer for some time.

The Union took no issue with the long-standing adage that “a deal is a deal”. However, this can only be upheld when there is a meeting of minds in the first instance and such was not present in this matter. The grievor did not understand the extent of the release and for that reason there was no agreement and this Board should so declare. In the alternative, if this Board finds there was an agreement there should be a declaration that the agreement was as set out in paragraph 9 of the Agreed Facts and not as provided in the proposed Memorandum of Settlement.

DECISION

The Union did not contend that the provisions of the Memorandum of Settlement were inconsistent with the terms of the Employer’s offer as proposed at their mediation session. In her November 25, 2005 letter to Union counsel, the grievor said there was inconsistency but her explanation of that inconsistency was that the terms that were dictated to her earlier “did not include the employer’s heavy duty protection clauses”. What is apparent from her letter to counsel written ten days after she received the Employer’s Minutes of Settlement is that the grievor became upset and angry with the Employer concerning other events that had transpired. It is something of an understatement to say that the focus of that letter was not the pay deduction grievances. An examination of that letter leads me to think the grievor withdrew her agreement because of her overarching anger at the Employer stemming from other matters.

In my view, there is no inconsistency between the point form settlement provisions that were put to the grievor at the mediation session (and later dictated to her by Union counsel in a telephone discussion) and the terms of the Minutes of Settlement. Certainly the Minutes of Settlement were, as one would expect, more fulsome and provided more detail, but they were not inconsistent. However, it is to be remembered that the grievor had agreed that the agreement constituted a full and final resolution of the grievances, no Employer liability and a release clause. It is difficult to ascertain how that differs from the Minutes of Settlement or how those provisions are confusing.

At the hearing the grievor contended that she did not agree to the Memorandum of Settlement because she did not fully understand or appreciate the breadth of the release provision. I did not find that assertion compelling for a number of reasons. Foremost of which was the fact that in the letter written by the grievor to her counsel some two weeks after she had faxed her agreement regarding the terms of settlement, there was no mention of a problem comprehending the provisions of the deal.

A review of Ms. Rolfe’s reasons for rejecting the Employer’s offer is instructive. The listed reasons are:

1. The terms were not consistent but the problem seems to be the “employer’s heavy duty protection clauses”.

2. She was in receipt of “an eighth generation Xerox copy” and wonders how many other copies are “floating around”.

3. She found the fact that Ms. Steele (one of the people the grievor alleges has discriminated against her) has signed the document for the Employer.

4. The offer was not made in good faith because it was written ‘to protect the employer against liability and as a protection for their inappropriate actions and behaviour”.

5. The Employer engaged in intimidation tactics by bringing ‘five musclemen” to the mediation session, including Ms. Steele.

6. On November 3, 2005 she found that that her benefits and life insurance had been discontinued some seven months earlier and she had not been informed.

What is noticeably absent from this considerable list of reasons to reject the Minutes of Settlement is a claim from Ms. Rolfe that she did not appreciate the extent of the release provision that was ultimately reduced to writing or some confusion on her part as to what was meant by the phrase “full and final resolution”. Indeed, as noted earlier, nowhere in the four page letter did the grievor claim that she was surprised or confused by the difference between the verbal discussions regarding the “full and final resolution” of the grievances with a “release clause” and the provisions that were ultimately set out in the written Minutes of Settlement. I find it difficult to believe that the grievor was confused about, or did not appreciate that a full and final resolution of the three grievances with a release clause would allow her to litigate the precise issues in another forum.

There is little doubt that the letter written to Mr. Holmes by the grievor reveals much anger, acrimony and frustration. The hearing into the merits of the remaining grievances will reveal the cause of the grievor’s feelings regarding her treatment as an employee. Be that as it may, what the November 25, 2005 letter does not indicate, in my view, is any misunderstanding or confusion regarding the terms of the settlement as discussed by the parties during their mediation session. The grievor took ten days to compose and execute her November 25, 2005 letter to Mr. Holmes. I am of the view that if she did “not appreciate the provisions of the Employer’s offer” she would have said so clearly in her letter. She did not and her failure to do so is telling, in my view.

I am buttressed in my view by the contents of the fax sent by Ms. Rolfe to Mr. Holmes on November 4, 2005. In that document the grievor instructed her counsel to “reach an agreement” on terms for a “full and final resolution of pay deduction grievances” that included both a release clause and a provision that there was no admission of wrongdoing or liability by the Employer. There was nothing conditional about these instructions and no matter was left unresolved.

Unlike other matters, this is not a case where there was a lot of discussion between the offer and the drafting of the Minutes of Settlement. There was no further discussion that could have led to confusion or misunderstanding. In this case, the Minutes of Settlement were set out in a document and based on the terms offered by the Employer at mediation. After a period to contemplate the offer, they were accepted by the grievor and the Union.

It is interesting to note, as mentioned above, the amount of money that the Employer agreed to pay to the grievor is an amount in excess of her actual monetary claim for these grievances. It is not unusual in circumstances such as these that an employer will pay an amount of money over and above an actual claim in an effort to “buy” a release from further litigation.

In her evidence the grievor stated that she did not comprehend the Employer’s offer because of her stress and anxiety disability coupled with the fact that she was taking anti-depressants. Again, there was no mention of either of these reasons in the November 25, 2005 correspondence to Mr. Holmes. Further, and more importantly there is simply too little evidence in this regard, and none of it medical, for me to find for the grievor. While I am not agreeing with the Employer’s assertion that this was merely a convenient excuse for the grievor to utilize to substantiate her resiling from the agreement, I did not find the evidence proffered sufficient to find for Ms. Rolfe.

For those reasons, I am of the view that there was an agreement between the parties regarding grievances #1, #2 and #4. I find nothing inconsistent between the general terms found at paragraph 9 of the Agreed Statement of Facts and the provisions of the Memorandum of Settlement. Therefore, the terms of the Memorandum of Settlement signed by the Employer on November 8, 2005, are in effect.

Dated in Toronto the 31^st day of August, 2006.