GSB#2009-2047

UNION#2009-0376-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Moore)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Justin Diggle Liquor Control Board of Ontario Counsel

HEARING

October 22, 2010.

Decision

1On August 31, 2009, the grievor, Lynda Moore, a casual Customer Service Representative, grieved her discharge from the LCBO which had occurred on August 27, 2009. The grievance alleges unjust dismissal and asserts that "[t]he Grievor has been harassed and discriminated against in violation of Article 2.1(a) and 2.1(b) as defined in the Ontario Human Rights Code." On September 24, 2010, the Union provided particulars to the Employer concerning her harassment and discrimination claims. The Employer has now moved to strike certain of the grievor's claims on the basis that they pertain to matters which were earlier grieved and resolved through Memorandums of Settlement and, in the alternative, because they are untimely. The Union opposes the Employer's motion.

FACTS

1. Paragraph 1 of the Particulars and July 24, 2006

2The Union, in its particulars, submitted a letter containing sixteen paragraphs of particulars and an attachment entitled "Local Particulars" which were described as containing details of "harassment issues which the Grievor raised with the Union Local" which referred to items by date.

Paragraph 1 of the particulars states:

With respect to the details titled "July 24, 2006", the Grievor willingly accepted a transfer as a result of harassment experienced at Store 187, on the basis that she would be given the opportunity to explore her interest in vintage wine. The Employer failed to give her the opportunity to explore these interests following the transfer.

The July 24, 2006 paragraph of the Local Particulars states:

Lynda files a harassment grievance asking for immediate cessation of all workplace harassment at Store 187, her place of employment. Lynda also asked that the Employer actively engage in workplace initiatives that promote equity, build communication and that protect the human rights of the grievor. Grievance was prompted by events that began in February 2006 when co-workers were discovered sitting in the store office, "spying" on the grievor as she worked using the store security cameras. The following Monday morning, the grievor asks for a meeting with the store manager and the District Manager who assured her that they agreed that the spying was wrong and that they would "handle it". In fact, nothing was handled and things have been deteriorating and Lynda increasingly feels that the is being treated like a thief and a snitch. June 15th, Lynda is asked to sign (agreeing) a Counselling Letter (which is not discipline) regarding the handling of value-added products. The Stage 2 of the grievance, the Employer agreed to meet with the store staff in an effort to determine whether or not a poisoned work environment existed……in the initial MOS, it states "In fact, it has been the Employer's determination that co-workers need to work with improved harmony, therefore the Employer has established and communicated standards of expectations to current employees in Store 187." The MOS were revised and signed at Stage 2. Grievor was transferred, willing, to another store, accepting an informal offer from the Employer to engage Lynda in her passion of vintage wine, committing to allow her to attend tastings and hone her skills. The Employer acknowledged that Lynda was keen and enthusiastic, well-liked by customers and well able to bring the necessary skill needed to the position of assisting the Product Consultant. Also, meetings were held with employees to discuss workplace department and a fall session for all Barrie store managers and assistant managers was to be undertaken with the LCBO Manager for Workplace Diversity and Human Rights, Janet Naidu. It is not apparent to us whether or not this actually took place. Grievance settled September 2006.

3The evidence presented establishes that there were complaints raised by the Grievor in February 2006, which led to a grievance filed on July 24, 2006, asserting that "the Grievor is being harassed contrary to, and specifically but not limited to the provisions of Article 2.1(b), Article 32.1 and the Employer's Policy – Human Rights/ Workplace Harassment Prevention." It further shows that this grievance was the subject of a Memorandum of Settlement on September 15, 2006, which constituted, by its terms, "a complete and final settlement of all matters raised in the grievance or matters that could have been raised in said grievance."

2. Paragraph 3, 4 , Dec. 10, 2007, Dec. 21, 2007 and Jan. 18, 2008

Paragraph 3 of the particulars reads:

On December 10th 2007, the Grievor met with her manager and was asked if she ever smoked marijuana. The Grievor acknowledged that she had smoked marijuana. The manager then claimed that someone complained that the Grievor smelled like marijuana. The Grievor asked her to identify the individual that complained and the manager refused. The Grievor assured the manager that she did not smoke marijuana at work.

Paragraph 4 reads:

The holiday season in December 2007 was extremely stressful for the Grievor. She was removed from work on the Friday before Christmas without explanation, and not scheduled for additional shifts. This caused significant emotional distress for the Grievor over the holidays. It also caused significant financial distress for the Grievor as she was off work over the holidays. The Grievor believes the timing was deliberate on the part of the manager, and the manager intentionally caused this distress during the holiday season.

The Local Particulars read as follows:

December 10, 2007

A verbal counselling session takes place with union representative Susan Lusty present relating to an incident of Sunday December 9th on which day Lynda was the Acting manager of the store and whereby it was alleged that she smelled of marijuana. Lynda responded by saying that she did, in fact smoke pot, but not at work. Management reviewed the expectations of an Acting Store Manager with her.

December 21, 2007

Lynda is asked to ring off her cash box and she is relieved of duty with pay until further notice and is sent home. Lynda has no idea why. After Christmas, Lynda receives a Notice of Intended Discipline dated December 22nd regarding allegations of being under the influence of intoxicants while on duty during her shift of December 21st. We have a meeting with management on December 28th subsequent to which a letter of reprimand (which is discipline) is issued on January 7th indicating that any further incidents of this nature may lead to further disciplinary action being taken against her. Lynda emphatically denies the allegations of being under the influence and management does not provide proof. Lynda experiences a skin rash for which she is treated medically…this is directly as a result of the extreme stress she has experienced due to the suspension and subsequent discipline and the shame attached to being kicked out of the workplace and not knowing why until after Christmas Day. Lynda has been in conflict with a co-worker whom she suspects may have made unsolicited comments to management regarding Lynda that supported the Employer's allegations but we cannot confirm this.

January 18, 2008

Lynda files a grievance to have the letter of reprimand removed, charging unjust discipline. Manager lies during the Stage 2 meeting indicating that she told Lynda that she would be paid for all scheduled shifts for which she was absent until recalled to work. No so. In fact, Lynda's pay treatment for the week she was off, waiting for management to notify her about returning to work, was still in question when we met on December 28th. Her manager's response to my questioning regarding pay was ambiguous even then, suggesting that she was going to reserve her decision on whether or not to pay Lynda based on our meeting. Grievance is denied at both Stage 2 and Stage 3. Grievance goes to med-arb (December 2008). I do not have the documentation for the outcome. …Grievor not at all satisfied with med-arb meeting, and in fact, grievor feels that the authority of management was not challenged although the burden of proof should have rested with the employer. Letter stays in the store file only, not to appear in the HR file.

4The evidence established that on December 22, 2007, a Notice of Intended Discipline is issued to the grievor concerning her shift on December 21, alleging that she "may have been under the influence of intoxications." On January 7, 2008, the grievor is issued a written reprimand. On January 18, 2008, the Grievor files a grievance alleging that she has been disciplined without just cause. On December 16, 2008, the grievance is resolved through a Memorandum of Settlement, "constituting a complete and final settlement of all matters raised in the grievance or matters that could have been raised in said grievance."

REASONS FOR DECISION

5The Employer argues that the facts and issues raised in both Paragraph 1 and the July 24, 2006 statement were the subject of an earlier grievance which was fully and finally resolved by the parties, and therefore cannot be used to support the grievor's current claim of harassment. In support it cites to Re OPSEU (Dale) and Ministry of Health and Long-Term Care, GSB No. 0783/00 (Abramsky); Re OPSEU (Waraich) and Ministry of Labour, GSB No. 2003-0187 (Watters); Re OLBEU (McIlwain) and LCBO, GSB No. 2002-2077 (Watters); and Re OPSEU (Patterson) and Ministry of Children and Youth Services, GSB No. 1989-1546 (Abramsky). The Employer acknowledges, however, that to the extent paragraph 1 alleges a breach of the settlement, the Union may raise that issue in support of its claim, based on Re OPSEU (Waraich), supra at par. 32, although it asserts that there is nothing in the Memorandum of Settlement which refers to the transfer of the grievor, which occurred approximately two months later, on November 13, 2006 or any commitment by the Employer concerning the Grievor's interest in vintage wines. In that regard, it seeks further particulars from the Union.

6The Union, while recognizing the Board's jurisprudence, asserts that it is not seeking a remedy for matters that have been resolved, but is, instead, asserting that the prior examples of harassment establish that her termination in 2009 was a continuation of the harassment that began much earlier and is necessary to establish that the Employer acted in bad faith. It asserts that the evidence is also necessary for this Board to assess the rationale behind her termination, which can only be done in the context of the earlier events. It submits that the Board has flexibility to admit this evidence, which is relevant. It further submits that unlike the situation in Re OPSEU (Dale), supra, the Grievor and the Union had no knowledge, at the time of settlement, that there would be future harassment by the Employer.

7The Board's jurisprudence clearly recognizes the vital role of settlements in the resolution of grievances at the GSB. In Re Landry-King, GSB No. 1593/84(Knopf), at pp. 8-9, the Vice-Chair stated:

The Board wishes to do everything possible to foster and honour settlements reached by the parties. Once settlements are achieved, parties must feel confident that they can rely upon them. Otherwise, there would be no incentive for the parties to even attempt to settle matters. Unless there is a compelling reason why a settlement once obtained, cannot be honoured by the parties, this Board should not even attempt to interfere with the settlement.

The Board in Dale, supra at par. 17, again relying on GSB jurisprudence, stated: "Once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise."

8In so ruling, the Board discussed the jurisprudence of the Ontario Labour Relations Board that evidence concerning settled or withdrawn complaints may be "admitted for the limited purpose of establishing a pattern of unlawful activity and not for the purpose of gaining redress for the alleged unlawful activity", citing Draftline Industries Limited [1988) OLRB Rep. April 246 and Comstock Funeral Home Ltd. [1981] OLRB Rep. Dec. 1755. In relation to the facts in Dale, where the parties had resolved a number of grievances that arose in 1996 in 1999, the Board held that the rationale of the OLRB did not apply to a 1998 grievance that existed at the time other matters had been settled. It further ruled, however, that because of the passage of a significant period of time – in that case four years – the settled matters could not be relied upon to support the grievances filed in 2000 or 2001. The Board noted that in Comstock, supra, the events which gave rise to new unfair labour practice complaints occurred three days after the earlier complaints had been settled and within a few months of their occurrence. Under those facts, the OLRB had ruled that the respondent could not hide behind the settlement, and this was "especially so when its subsequent conduct is as predictably inflammatory as in the present case, and occurs within days of the preceding settlement." The OLRB had noted that "not a word was said to the complainant in the settlement discussions three days before in regard to these pending new developments." In Dale, supra at par. 24, the Board held that "[t]he same is simply not true after the passage of so many years." The Board concluded at par. 26: "Given that the evidence sought to be lead is to establish a pattern of unlawful conduct, the passage of so much time leads me to conclude that the rationale of Comstock should not be followed in these particular circumstances."

9In Re OPSEU (Waraich), supra at par.30, the Board also was "disinclined to apply the jurisprudence of the Ontario Labour Relations Board in the circumstances existing in this case." In that case, the grievor had filed two earlier grievances, one on April 17, 2001 and the other on October 11, 2001 which were settled in June 2002. He then filed another grievance on March 25, 2003, and the Union sought to rely on the earlier incidents to establish a pattern of discrimination. The Board noted that the time frame for which the Union sought to adduce evidence was much shorter than in Dale, and that it only involved two grievances, not 17 as in Dale, and therefore the hearing would not be significantly lengthened by a ruling in the Union's favour. Nevertheless, the Board declined to allow the evidence of matters that had been settled. Vice-Chair Watters explained at par. 30:

Notwithstanding the above, I find that the overriding consideration, in this instance, is the fact that the parties greed to a full and final settlement of the grievances of April 17, 2001 and October 11, 2001 through the Memorandum of Settlement executed on June 7, 2002. I have no doubt that the parties intended to fully and finally resolve these disputes and to take appropriate steps that would hopefully result in the development of a more productive, and less acrimonious, employer-employee relationship. Unfortunately, the latter did not occur. Nevertheless, I share the concerns express in Re Hotel-Dieu Grace Hospital and Dale et al. with respect to the consequences which could potentially follow from a decision in the Union's favour. More specifically, this Vice-Chair could be called upon to make adverse findings against the Employer in respect of its treatment of the grievor when that very issue has been the subject of a mutual settlement. I, too, am most reluctant to proceed down that road, as I believe that it could serve to undermine the parties' confidence in final settlements and their legitimate expectation that settled matters will not reappear in some different guise. …

10In this case, the Union asserts that the grievor's discharge was the culmination of the harassment she alleges began in 2006. It seeks to lead evidence on those earlier, settled events to establish the Employer's motive for discharging the grievor in 2009. As in Waraich, supra, there are only two grievances that the Union wants to lead evidence about – not 17 as in Dale, supra – and at least one of them is somewhat closer in time than the grievances there.

11The problem with allowing the introduction of this evidence is that not only is there a significant gap in time, particularly in regard to the first grievance and the grievor's discharge, but if evidence concerning these earlier events is led, the Employer would be compelled to defend its actions, and this Board would be called upon to decide what occurred – even though the settlement constituted "a complete and final settlement of all matters raised in the grievance…." As stated in Waraich, supra, the Board "could be called upon to make adverse findings against the Employer in respect of its treatment of the grievor when that very issue has been the subject of a mutual settlement."

12In Comstock, supra, there was clearly an element of bad faith involved in the earlier settlement. The Employer there settled the Union's unfair labour complaints, leading the Union to believe that the Employer accepted it as the employee's representative, without saying a word about its intent to take further action only days later. The Board, in those circumstances, decided that the Employer could not hide behind the settlement. In Waraich, the parties settled the earlier grievances in the hope that it would fully and finally resolve matters, though unfortunately that did not occur. The same is true here.

13Given the vital importance of settlements to the grievance process between the parties under this collective agreement, it would be only in the most special or exceptional cases – akin to the bad faith situation in Comstock, supra – that the Board would permit evidence of matters that were fully and finally resolved to establish a pattern of harassment or discrimination. OPSEU (Hawkes) and Ministry of Community Safety and Correctional Services (2009) GSB No. 2007-2388 (Leighton); OPSEU (O'Brien) and Ministry of Community Safety and Correctional Services (2010) GSB No. 2003-1881 (Leighton). There was no evidence presented here to establish such exceptional circumstances.

14Consequently, I conclude that the Union may not lead evidence pertaining to those matters which have been resolved through a Memorandum of Settlement. It may, however, lead evidence that the settlement was breached. It may also lead evidence on matters that were not part of the settlement. In this regard, I am referring specifically to the verbal counselling on December 10, 2007. It was not specifically part of the Memorandum of Settlement. Although the settlement, by its terms, constituted "a complete and final settlement of all matters raised in the grievance or matters that could have raised in said grievance", the counselling session was a different matter from the subsequent letter of reprimand which was grieved and then resolved.

15Finally, I note, for the record, that the parties have mutually agreed to provide additional particulars in time for our next hearing date.

CONCLUSION

1. For the reasons set forth above, I conclude that the Employer's motion to strike, except for December 10, 2007, should be granted.

2. The Union, however, is allowed to lead evidence that the Memorandum of Settlement has been breached.