Ontario Public Service Employees Union (James) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 78600

GSB#1999-0464

UNION#1999-0719-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (James)

Union

• and -

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

Employer

BEFORE

Gerry Lee

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Benjamin Parry Ministry of Government Services Labour Practice Group Counsel

CONFERENCE CALL

September 22, 2011.

Decision

1This case was first resolved with my involvement more than ten years ago. A claim by the Union and the Grievor that there was a breach of the initial settlement resulted in a second Memorandum of Settlement dated January 5, 2011. The Grievor has now claimed that there has been a breach of the second Memorandum of Settlement in which I remain seized. This matter was dealt with by Counsel for the Union and the Employer via conference call on September 22, 2011, in order for the matter to be dealt with expeditiously.

2The Union and the Grievor claim that a Record of Employment (ROE) was not sent to the Federal Government until August 2011 following the lump sum payment that was made to the Grievor pursuant to the January 5, 2011, Memorandum of Settlement. The Union claims that this delay negatively impacted the Grievor’s ability to collect Employment Insurance Benefits and that the Employer should compensate the Grievor for any losses incurred.

3Counsel for the Employer takes the position that there was no express or implied term in the Memorandum of Settlement that required the Employer to send a ROE within any specified time frame. As such, the Employer claims that they have fully complied with all of the terms of the January 5, 2011, Memorandum of Settlement. Furthermore, the Employer pointed out that during the negotiations leading to the January 5, 2011 settlement, the Employer had specifically rejected the Grievor’s request to be paid salary continuance as opposed to a lump sum payment in order to avoid any Employment Insurance issues.

4Having carefully considered the submissions made by the Parties, I have concluded that the January 5, 2011, Memorandum of Settlement document contains no reference whatsoever to a Record of Employment. As such, the delay in sending out the Record of Employment cannot constitute a breach of settlement. Accordingly, the claim that there has been a breach of the January 5, 2011, settlement is hereby dismissed.