GSB#2011-0583, 2011-0988, 2011-3300, 2011-3301, 2011-3302

UNION#2011-0585-0003, 2011-0585-0005, 2011-0585-0009, 2012-0585-0001, 2012-0585-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Brown)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Alison Nielsen-Jones Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Labour Practice Group Counsel

HEARING

February 15, 2012.

Decision

1Two grievances filed by Mr. Michael Brown (“grievor”) Board file # 2011-0583 and # 2011-0988, came before the board for arbitration. The parties agreed to consolidate three other grievances filed by the grievor, Board file # 2011-3300, 2011-3301 and 2011-3302. At the commencement of the hearing the parties agreed that the Board should rule upon two motions raised by the employer based on the union’s statement of particulars.

2RES JUDICATA

The employer submits that the assertions made in paragraphs 14, 16, 18, 19 and 30 of the union’s statement of particulars which relate allegations of inequitable distribution of overtime and assignment of training opportunities had been previously grieved by the grievor and subsequently settled. It is not necessary to set out the detailed particulars, or the previous grievances in question, because the union does not dispute that the evidence it seeks to adduce relate to matters which were settled by minutes of settlement. The union’s position is that it should nevertheless be allowed to do so in the particular circumstances.

3The evidence indicates that a grievance dated March 3, 2010 filed by the grievor alleged favouritism and differential treatment with regard to certain training opportunities that arose in January, 2010. By Minutes of Settlement executed on March 30, 2010, the parties agreed to certain terms “as a full and final settlement without prejudice or precedent”. By its terms the employer undertook certain obligations, including compensation to the grievor by way of time off for the lost training opportunities. The minutes also included paragraph 9 to the effect, “the Employer and the grievor agree that these Minutes of Settlement represent full and final settlement of all issues between the parties”.

4A further grievance dated November 3, 2010, filed by the grievor among other grievors, had alleged a violation of article UN 8.2.1 by the employer’s failure to distribute overtime in a fair and equitable manner. Minutes of Settlement signed by the employer, the union and the grievor among others, were executed on November 4, 2011. The preamble provides that by its terms, the parties “agree to the full and final settlement of the … grievances, without precedent and without prejudice”. By its terms, the employer agreed to credit 5.55 days of compensating time off at straight time to each of the grievors, and the parties agreed to deal with the task of developing and implementing a system for the fair and equitable distribution of overtime hours at LERC. Paragraph 5 set out the following:

The Grievors hereby release and forever discharge the Crown in Right of Ontario and the Employer, its servants, agents and directors of and from all actions, causes of action, grievances, claims and demands of every nature and kind arising out of, as a result of the grievance and the circumstances giving rise to the grievance, including but not limited to all claims under the Employer’s Workplace Discrimination and Harassment Policy, the Ontario Human Rights Code, the Public Service of Ontario Act and the Employment Standards Act.

5As noted, the union seeks to lead evidence relating to the overtime and training issues, which it concedes were the same as those settled by the Minutes of Settlement, in support of a grievance dated April 14, 2011 filed by the grievor alleging “workplace harassment and discrimination by employer”. By way of remedy, the grievor seeks a reassignment to a different office, a letter of apology and monetary compensation.

6In support of its position that the proposed evidence should be allowed, the union pointed out that the Board has broad discretion and latitude to hear all relevant evidence. Counsel emphasized that the grievor and the union do not seek to relitigate the allegations of unfair distribution of overtime or differential treatment in regard to access to training opportunities. No remedy is sought in this proceeding in regard to these alleged violations. The union is only seeking an opportunity to establish the facts relating to those allegations in order to provide a context for the allegations against the manager in the instant grievance that he engaged in work placement harassment of the grievor, and to demonstrate an “ongoing course of conduct” on the part of the manager.

7Union counsel further argued that the board should not apply the doctrine of res judicata because while the facts relied upon are the same, the nature of the settled grievances and the instant grievance is completely different. The settled grievances alleged inequitable distribution of overtime and training opportunities. There was no allegation of harassment in those grievances. In contrast, the crux of the instant grievance is the allegation of harassment and reprisals, matters not previously alleged nor settled.

8The employer relied on Re Dale 0783/00 (Abramsky), Re Rolfe, 2003/2512 etc. (Briggs), Re Fletcher, 200410083 etc (Leighton) and Re Hawkes, 2007é2388 etc. (Leighton) in support of its motion. The union referred the Board to Comstock Funeral Home Ltd., [1981] OLRB Rep. Dec. 1755 and Re Oaklands Regional Centre, award dated August 14, 1990, unreported, (Dissanayake, Chair).

9The approach of this Board where a party seeks to lead evidence relating to matters that have been the subject of settled grievances is capsulized in Re Hawkes (supra) at paragraphs 11-12 as follows:

11The issue before me is whether evidence of events in 2005 that were the subject matter of grievances, settled by MOS in early 2006, should be admitted in the current proceedings. The union seeks to adduce the evidence to show a pattern of harassment and to provide the context for the current grievances. The union acknowledges the principle of the sanctity of settlements – that parties must be able to rely on the agreement that the matter will not return in another forum or guise. However, the union argues that I should make an exception here because the employer has acted in bad faith by continuing a WDHP complaint.

12The board has addressed this issue consistently over the years, recognizing the importance of enforcing settlements between the parties. The board has discretion as to what evidence it admits, but it has said that it will not admit evidence of a settled matter unless there are special circumstances. As Vice-Chair Abramsky stated in her thorough review of the board’s case law on the issue in Dale, “once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise” (as cited in Fletcher, supra, at p. 8).

10In the present case there is no question that the union is seeking to adduce evidence in relation to matters settled. The issue is whether there are special circumstances that would outweigh the need to maintain the sanctity of settlements, which the Board has supported consistently. The two decisions the union relied upon are, in my view, examples of special circumstances which caused the respective boards to create an exception. In Comstock Funeral Homes Ltd. (supra) the Board found that the employer had acted with impunity by taking adverse actions a mere three days after executing the minutes of Settlement. In allowing the evidence relating to the settled matter, the Board at p. 1758 wrote:

The settlement of a complaint continues to be advantageous to a party for all of the reasons one would normally contemplate settlement. But a party is not entitled to think that by the settlement of a particular complaint, it thereby obliterates the past, and can act thereafter with relative impunity. Rather, having avoided the time, expense and risks of litigation by the settling of a complaint, a party must recognize the possibility that future conduct of a controversial kind can force it to litigate its entire pattern of conduct to that point. This is especially so when its subsequent conduct is as predictably inflammatory as in the present case, and occurs within days of the preceding settlement.

11It is apparent that in reaching its decision, the Board was greatly influenced by the “predictably inflammatory” conduct by the employer “within days of the preceding settlement”. Although the Board does not explicitly refer to bad faith, it is apparent that it was concerned about the employer’s good faith. In this regard, the Board in Re Hawkes (supra) at paragraph 13 refers to the union’s assertion that bad faith on the part of the employer constituted a special circumstance that should cause the Board to create an exception, but finds that there was no evidence of bad faith.

12In Re Oaklands Regional Centre, (supra) a policy grievance before the board claimed that a new scheduling policy implemented by the employer exposed employees to an unsafe work environment. The Board had before it very limited evidence that certain individual grievances relating to assault on the grievors by residents had been filed and were settled, withdrawn or abandoned. The board noted at p. 3 that “We have no information as to the terms or circumstances under which the settlements, withdrawals or abandonments may have occurred”. Moreover, there was no evidence in that case of any “release” as part of the settlements. In those circumstances, the Board allowed the union to adduce evidence relating to some incidents which formed part of the settled, withdrawn or abandoned individual grievances in support of the union’s policy grievance.

13In contrast, in the present case, all of the terms of the minutes of settlement agreed to between the parties are in evidence. Both settlements included explicit “releases”. The settlement of the training opportunity issues is said to represent full and final settlement of all issues between the parties”. The words “all issues” must at least be interpreted to include all issues relating to training opportunities which were the subject of that grievance. The settlement of the overtime opportunities grievance is said to release the employer from claims, demands etc. “of every nature and kind arising out of, as a result of the grievance, and the circumstances giving rise to the grievance …”.

14Considering that the proposed evidence directly relates to the subject matter of memoranda of settlement, and that those memoranda included explicit language, acknowledging full and final settlement of all issues or providing for broad release from future claims, the onus, in my view, is on the party seeking to adduce the evidence to satisfy the Board, that there are special or exceptional circumstances, which ought to cause it to allow evidence related to settled matters. I have concluded that the union has not met that onus.

15The union submitted that it was not attempting to relitigate the settled grievances; that the instant grievance raises an allegation not raised in the settled grievances, namely, harassment and reprisals; that the union is not seeking any remedy with respect to the allegations in the settled grievances; that it only wishes to rely on the facts related to the settled issues only to provide a context for its harassment allegation; and finally that it needs to rely on those facts to be able to establish an “on-going course of conduct” as a basis for the harassment allegation. However, the board has not considered any of those factors as sufficient to outweigh the labour relations policy considerations favouring the upholding of the finality and sanctity of grievance settlements. The identical arguments were made before the Board in the cases relied upon by the employer, and the Board did not consider them sufficient to make an exception.

16As the Board stated in Re Dale (supra) at paragraph 17, “Once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise”. In Re Pitirri, 1685/92 (Kaplan) at p. 12, the Board observed, “With respect to those grievances covered by the settlements, one need only observe that the parties enter into agreements of this kind with the expectation that their agreements will remain in effect and that the grievances that have been resolved by their terms will not reappear in some different guise”. In the present case, not only did the parties settle their disputes relating to distribution of overtime and access to training opportunities, in return for consideration provided by the employer the union and the grievor have undertaken not to make any further claims arising out of those settled issues. This is more so with respect to the evidence relating to distribution of overtime, because at the time that grievance was settled (November 4, 2011) the instant harassment grievance had already been filed (April 14, 2011). When the overtime issues were settled with an extensive release clause, and without any reservation of a right to raise any related claims, the employer is reasonably entitled to expect that those same settled issues would not resurface in a future proceeding.

17Having carefully considered the submissions of the parties and the authorities cited, I am persuaded that there are no special or exceptional circumstances that should cause the Board to allow the evidence in question. Therefore, the employer`s motion in that regard is upheld.

18TIMELINESS

In a second motion, the employer takes the position that certain events set out in the union`s particulars had occurred well beyond the time limits set out in article 22 of the collective agreement. It is submitted that the union has not provided any reasonable grounds for the Board to exercise its discretion under s. 48(16) of the Labour Relations Act, to grant an extension of the time limits. The employer therefore submits that the union should be precluded from leading evidence with respect to assertions made in paragraphs 8, 9, 10, 11, 15, 17, 20 and 21 of the statement of particulars. It is argued that the grievor should have grieved the alleged conduct set out in those paragraphs as they occurred in conformity with article 22. The employer relied on Re Faulkner, 2006-2093 (Petryshen); Re Berday, 2007-3132 (Devins); Re Smith et al, 2006-2107 and 2006-2379 (Gray) and Re St. Jean, 3002-1122 (Leighton).

19The union points out that this is in substance a harassment grievance. Such a grievance involves proof of a pattern or course of conduct. An employee is entitled to grieve once there is a sufficient number of events indicative of a pattern or course of conduct which amounts to harassment. Counsel submitted that if an employee was to grieve each incident as it occurs within the 30 day time limit under article 22, those grievances would not succeed because one incident would likely be not sufficient to establish a pattern or course of conduct to amount to harassment.

20Union counsel submitted that in recognition of the need to establish a pattern or course of conduct, this Board has recognized that an employee is entitled to rely on evidence in the period of three years preceding the filing of a harassment grievance. She pointed out that the earliest event relied upon by the grievor occurred in October 2008, which is well within the three year time limit. Moreover, the particulars set out numerous attempts by the grievor to raise his concern about the events in question with various levels of management. It was only when his concerns were not addressed to his satisfaction that he decided to grieve. And he did so within the three year time limit.

21Union counsel submitted further that the employer`s position that an employee must grieve each incident as it happens makes no sense because the individual events which form the pattern or course of conduct, may not even be grievable individually. She pointed out as an example, that one allegation in the harassment grievance relates to the issuance of a letter of counsel, which is not grievable by itself. However the union would be relying on it as part of the pattern or course of conduct which it contends constitutes harassment.

22Having carefully considered the submissions and the legal authorities, I find the position advanced by the union convincing. In the Human Rights Code of Ontario at s. 10(1) “harassment” is defined as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. Unlike the grievors in the cases cited by the employer, here the grievor is not grieving discreet events. He is grieving that the employer has harassed and retaliated against him by engaging in a course of conduct which he claims is vexatious. As union counsel convincingly argued, a series of events may constitute harassment, even in circumstances where the events themselves may not be grievable individually. For example, a succession of letters of counsel issued with vexatious intent. Also, there is merit in the union’s position that where conduct is not blatant but subtle, it is reasonable for an employee to conclude that the conduct is vexatious, and not innocent, only when it continues as a pattern. Indeed, good labour relations policy does not favour forcing employees to allege “harassment” every time there is employer conduct which they feel is unacceptable.

23The Grievance Settlement Board has held that a grievor should be entitled to lead evidence over a period of three years preceding the filing of a harassment grievance to establish a pattern of harassment. See, Re Patterson, 2001-0925 et al (Leighton) and Re Patterson, 1989-1546 et al (Abramsky). Counsel for the employer did not dispute the “three year rule” recognized by the Board, although he pointed out quite correctly that it is not a hard and fast rule but only a rule of thumb. Indeed, the Board has departed from this three year rule due to circumstances of the particular case. Thus in Re O’Brien; 2033-1881 (Leighton), in extending the allowable time period beyond three years, at paragraphs 14-15 the board wrote:

14The GSB has held similarly in the Patterson decisions of 2003 and 2006, supra, and others, that a three year scope is normally fair in all the circumstances; that is, it should be enough time to allow the union to show a pattern of harassment and the events should not be so old as to be difficult to defend. Finally, the hearing is somewhat contained.

15While three years before a grievance of this nature will normally be fair in all the circumstances, each case must be considered on its facts. In considering the circumstances here, I am persuaded that it would be arbitrary in this case to limit the evidence of the 2009 grievance to 2006.

24Just as the Board was willing to extend the three year period in Re O’Brien (supra), in appropriate cases the Board may be convinced that the allowable time period should be shorter than three years. However, the employer did not point to anything unique in the circumstances of this case which should cause the Board to depart from the normal “rule of thumb” it has recognized as fair and reasonable. Therefore, the Board finds that it should adhere to the three year period and allow the union to rely on events coming within that three year rule as particularized. It is so ordered, and the employer’s motion on timeliness is dismissed.

25The Board remains seized with jurisdiction to deal with all outstanding matters arising out of the grievances herein.