Ontario Public Service Employees Union (Corbiere) v. The Crown in Right of Ontario (Ministry of Community and Social Services), 2013 CanLII 57002

GSB#2011-3255

UNION#2011-0601-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Corbiere)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Mark Barclay Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Kevin Dorgan Ministry of Government Services Legal Services Branch Counsel

HEARING

August 8, 2013

Decision

1The Board is seized with a grievance dated October 21, 2011 filed by the grievor. This decision determines a dispute between the parties as to whether the grievance has been settled. The issue was argued on the basis of the following agreed statement of facts:

AGREED STATEMENT OF FACTS

1. Henry Corbiere (“the Grievor”) was a fixed-term employee who worked in various positions in the Ontario Disability Support Program (ODSP) in the office located at 341 Queen Street East, Sault Ste. Marie, from April 5, 2010 to October 21, 2011.

2. In October 2011, the Grievor participated in a job competition for 2 permanent and 2 fixed-term Program Support Clerk (OAD6 classification) positions (“PSC position(s)”). The 2 fixed-term PSC positions were for “up to 12 months”. The Grievor was unsuccessful in the competition. The Grievor’s fixed-term contract with the ODSP ended on October 21, 2011.

3. The Grievor filed a grievance dated October 21, 2011 (“the grievance”), which stated:

STATEMENT OF GRIEVANCE

The Ministry has violated Articles 3, 6, and 31 of the Collective Agreement but not exclusively.

SETTLEMENT DESIRED

1. That the employer cease and desist.

2. That I be awarded the position of Program Support Clerk.

3. That I be fully compensated for any and all lost wages, benefits, credits and pension with interest and retroactively.

4. That I be given full redress.

5. On December 23, 2011, Kelly Gioia (ODSP Manager) called the Grievor and offered him a fixed-term PSC position. One of the successful candidates from the job competition had found a job elsewhere, and the Grievor was the next highest-ranking candidate from the job competition. The Grievor declined the offer because the contract was only for 2 months.

6. On November 21, 2012, the parties engaged in mediation in Sault Ste. Marie with the Grievance Settlement Board (GSB). The parties did not reach a settlement and arbitration dates were subsequently scheduled.

7. On July 15, 2013, the parties engaged in arbitration of the grievance in Sault Ste. Marie with the GSB. On July 16, 2013, the parties re-engaged in mediation. The parties exchanged settlement offers through the Vice Chair acting as mediator.

8. The parties disagree about whether a settlement of the grievance was concluded on July 16, 2013.

9. The Union offered to settle the grievance on the basis of a 12-month fixed-term contract in the PSC position, or the equivalent of 12 months’ salary.

10. The Employer offered to settle the grievance on the following terms:

• The Employer will provide the Grievor with a 6-month fixed-term contract in the PSC position in the ODSP office in Sault Ste. Marie;

• The Grievor may begin in the position no earlier than August 1, 2013;

• The Grievor would be treated as a new hire in terms of seniority and salary;

• Before the Grievor begins the fixed-term contract, a meeting would be held between the Grievor, Kelly Gioia (ODSP Manager) and Paul Baldassarro (ODSP Regional Program Manager); and,

• The settlement would include standard terms the parties generally use in settlements, such as a release from liability, and a statement that the settlement is “without prejudice” and does not constitute an admission or concession of liability or wrongdoing. The settlement would not include a confidentiality clause.

10. The Union offered to settle the grievance on the terms proposed by the Employer, except with a 10-month fixed-term contract in the PSC position. This offer was verbally communicated by the Union to the Vice Chair, who then relayed the offer to the Employer.

11. The Employer asked the Vice Chair to seek clarification from the Union about when the Grievor wanted to start in the PSC position. The Union informed the Vice Chair that the Grievor wanted to start around September 7, 2013. This message was relayed to the Employer by the Vice Chair.

12. The Employer told the Vice Chair that it accepted the Union’s offer. The Employer also provided the Vice Chair with a copy of a Memorandum of Settlement to provide to the Union.

13. Meanwhile, the Grievor had phoned his current employer and requested a leave of absence so that he could work in the 10-month fixed-term PSC position. The Grievor was concerned about job security, because there was no guarantee that his PSC fixed-term contract would be renewed. The Grievor’s current employer denied his request for a leave of absence.

14. The Vice Chair told the Union that the Employer had said it accepted the Union’s offer. The Union was provided with a copy of the settlement but neither the Union nor the Grievor signed it. The Grievor informed the Vice chair that he was unable to sign the settlement because he had requested a leave of absence from his employer and had just been informed that the leave was denied.

15. The parties agreed to allow the Grievor to seek an appeal of his current employer’s decision to deny his request for a leave of absence. The parties made this verbal agreement “without prejudice” to their respective positions regarding whether the parties had reached a settlement on July 16, 2013.

16. On August 1, 2013, the Union informed the Employer that the Grievor’s current employer had denied the Grievor’s appeal of the decision to deny the Grievor’s request for a leave of absence.

17. The Employer’s position is that the parties reached a settlement of the grievance on July 16, 2013.

18. It is the Union’s position that a settlement had not been reached.

2At the outset it is noted that there is no suggestion by either party that the other negotiated in bad faith during the settlement discussions. The dispute is about the legal effect of the discussions. The employers position is that when it accepted the unions counter offer to settle on the basis of a 10 month fixed-term contract and conveyed that acceptance to the union through the Vice-chair a settlement was in place. Counsel submitted that the settlement was in fact evidenced in the minutes it had prepared and presented for the union to be signed off. He pointed out that the union has not suggested that the minutes of settlement contained any term or condition which was in variance with the understanding that had been reached. He submitted that the fact that a “back up plan” the grievor had in his own mind (i.e. maintaining his employment relationship with his current employer through an unpaid leave of absence) fell through, does not have the effect of nullifying the settlement that had been reached through an offer and acceptance made for good consideration. Counsel submitted that the employer would not rely on strict principles of contract law or the labour relations policy recognizing the sanctity of settlements to enforce settlements in all cases. However, in the present case it had negotiated throughout in good faith to find employment for the grievor because the union had demanded that as a necessary term for settlement. It compromised and increased the duration of the fixed-term contract the grievor was demanding and agreed to accept the union’s offer to settle on the basis of a 10 month contract. The grievor was not entitled to resile from that agreement based on new information he had acquired from his current employer, when the offer he made was not made conditional in any manner. In this case, the employer had concluded that litigation had gone on for too long and was seeking to rely on the settlement and enforce its terms.

3The union submitted that the purpose of every collective agreement is to promote harmonious labour relations between the parties to it. The collective agreement between these parties is no exception. He argued that forcing the settlement on the grievor in these circumstances does not serve that purpose.

4Mr. Barclay conceded that he could not find any arbitration decision which allowed a union to walk away from a settlement reached. However, he urged the Board to conclude on two grounds that no settlement had been reached on the particular facts of this case. The first ground was based on a conversation he had with employer counsel in the hallway prior to convening before the Board for arbitration on July 15, 2013. Although not included in the written agreed statement of facts, it was agreed that at that time Mr. Barclay encouraged the employer to offer the grievor a longer fixed-term contract in settlement of the grievance because, in the union’s view, that would make it easier for the grievor to obtain a leave of absence from his current employer, and that employer counsel responded that in his opinion a contract of longer duration in the OPS would likely make it more difficult to obtain a leave of absence. The union conceded that its counter-offer to settle on the basis of a 10 month contract was not made conditional on the grievor’s ability to obtain leave. However, it was argued that as a result of the aforementioned conversation the employer became aware that the need for a leave of absence was a concern for the grievor. Therefore, it would not have come as a surprise for the employer that the grievor needed to have a leave approved from his current employer before he could accept any contract of employment in the OPS.

5Secondly, Mr. Barclay pointed out that while minutes of settlement were drafted, it had not been signed by the employer when presented for signing off by the union. The union did not sign it, and within minutes the employer was advised that the union would not sign off. The union submits that it is unreasonable and unfair to force the settlement on the grievor. It results in the grievor giving up his grievance. In return, he gets a fixed-term contract which he cannot accept and is therefore worthless for him. Mr. Barclay submitted that as a general rule the union supports the principle that “a deal is a deal”. However, in this instance the union entered into settlement discussions and agreed to mediation in good faith. To force the terms of settlement which are of no value to the grievor in the circumstances would not promote a harmonious relationship between the parties. The Board was urged to find that the union is not bound by a settlement in the circumstances.

6In reply, employer counsel pointed out that throughout the discussions the union had insisted that it would settle only if the grievor was offered employment through a contract. Then the union kept negotiating to increase the duration of the contract the employer had offered. The employer finally agreed to the union’s demand for a 10 month contract. The minutes presented to the union incorporated exactly what the union had demanded. Counsel submitted that harmonious labour relations was well served by that process. To permit the union to resile from the settlement on the other hand would not be good labour relations policy.

7The employer provided numerous legal authorities, including excerpts from texts on the law of contract, as well as decisions from labour relations boards, arbitrators and this Board itself. Based on a review of these authorities a simple test emerges for determining whether or not a grievance had been settled. The question must be asked whether a point of time had been reached, and understood by the negotiating parties, when there were no longer any issues in dispute between them related to the grievance. If the answer is in the affirmative there was a settlement at that point of time. There is no requirement that a settlement be in writing and/or be signed off for it to be in effect and enforceable, unless of course it is explicitly so agreed. In Re Ontario Hydro, [1983] OLRB Rep. November 1869 (Gray), the Ontario Labour Relations Board cited with approval the award in Re Bilt-Rite Upholstering Co Ltd., (1980), 1979 CanLII 4007 (ON LA), 24 L.A.C. (2d) 428 (Rayner), stating at para.27 as follows:

27. The question of the efficacy of an oral settlement agreement arose in Re But-Rite Upholstering Co. Ltd., (1980) 1979 CanLII 4007 (ON LA), 24 L.A.C. (2d) 428 (Rayner). In that case an arbitration hearing had been adjourned pending settlement discussions. When the hearing resumed, company counsel took the position that the matter had been settled in the meantime. Union counsel took the position that the matter had not been settled. Both counsel agreed that their settlement discussions had reached a point at which they had reached oral agreement on the terms of a settlement which had been reflected in an unexecuted handwritten draft agreement which both counsel had pronounced satisfactory. The handwritten draft had been typed up and the typed version circulated for execution. At that point, union counsel had learned of the possibility of retroactive legislation which might make taxable the payment of damages contemplated by the settlement. That had led the union to refuse to sign the minutes of settlement. The union then argued that the settlement had to be in writing and signed to be binding, by analogy with collective agreements. It also argued that the parties’ intention had been that there would be no binding settlement until all documentation was complete. The board of arbitration in that case concluded at p. 430-431:

The Board is of the opinion that the parties reached settlement on all substantive matters. There were not matters left in dispute after the parties had reached their settlement. It is true that the settlement contemplated the reduction of the settlement to writing and signing by both parties. However, in our view, this was a mere procedural matter and was not an essential part of the settlement. If the union had suggested that there was [sic] some substantive terms that had not been covered by the settlement, the matter would be quite different. No suggestion was forthcoming.

8This Board has also endorsed the principle that a settlement is reached at the point of time when agreement is reached on all substantive matters in dispute. Thus in Re OLBEU (Policy Grievance), 860/91 (Waisglass) at p. 9, the Board wrote:

As explained in the Perfection Rug decision (cited above):

“…In complex matters, negotiations may proceed orally until the parties feel they have reached agreement in principle, leaving the details to be worked out thereafter in the process of drafting a written agreement. To the extent the anticipated written agreement is required or expected to contain terms or resolve points not finalized during oral negotiations, it can fairly be said that there is no agreement until the required document has been finalized and executed. Delivery and execution of the anticipated document is, in those circumstances, a precondition to the existence of a binding agreement. In each case where a written agreement is contemplated, it is ‘a question of construction, whether the parties intended that the terms agreed should merely be put into form, or whether they should be subject to a new agreement the terms of which are not expressed in detail’.”

In the case before this panel, the evidence is very clear that the parties had completed an oral agreement on the terms of settlement for this grievance and that the oral negotiations left no substantive points to be finalized and no details to be worked out thereafter in the drafting process. The facts of this case indicate that the parties intended that the terms agreed upon should merely be put into form.

9At p. 10 the Board cited a prior decision of its own as follows:

We shall now examine what we believe is the most pertinent among the decided cases referred to us by Employer’s counsel. In the Toplin case [GSB 2251/91-OPSEU AND MINISTRY OF CORRECITONAL SERVICES] Vice-Chair Samuels dismissed the Ministry’s preliminary objection – that the grievances had been settled – on the grounds that “there was no settlement in this testimony. While it appeared to the Ministry that a number of the grievor’s concerns had been met, at no time had all the details of a settlement been agreed by the parties. …Until all the terms were agreed in one package, the parties would have no settlement. And they never reached the point of agreeing on all the terms of a settlement. Until such a point is reached, either party could change its mind about any of the items which may have seemed satisfactory at the outset.”

10In concluding that the grievance before it had been settled, at p. 10 in Re OLBEU (supra) the Board wrote:

The facts in the grievance before this panel are in contrast to the facts in Toplin. Unlike that case, the Union in this case accepted all of the terms contained in the Employer’s offer. There was nothing left to negotiate. When the Union accepted all of the terms in the Employer’s package, the parties reached the point of agreeing on all the terms of a settlement. It is now too late for either the Union or the Employer to add a new term or to change its mind about any of the items in the agreed package.

11The facts before the Board in the instant case also lead to the inescapable conclusion that when the employer accepted the union’s counter offer of a 10 month contract there was nothing left to be negotiated. All of the other terms had been previously agreed upon. The last stumbling block was the length of the fixed term contract. The union demanded a 10 month contract. When the employer agreed to that demand there were no issues in dispute left.

12The Board views the union’s “harmonious labor relations” argument as nothing more than an expression of displeasure, perhaps even anger, about the employer’s decision to hold it to the settlement that was reached. If it is suggested that allowing a party – union or employer – to resile from a settlement reached promotes good labour relations, the Board is loath to subscribe to such a proposition. The Board understands the union’s view to be that it would have been more reasonable for the employer to have relieved the union of the strict legal consequences of the settlement reached, particularly considering that the union walked away from the settlement within a short time of the employer’s acceptance of its offer. As Mr. Barclay put it, “it was open” for the employer to not force the settlement on the grievor. The employer certainly could have done so. However, it was also open for the employer to enforce its legal right, and it has chosen to do so. There is no legal basis to deny the employer its right to enforce the terms of a settlement on the basis of the reasonableness or fairness of the consequences of the terms of settlement reached between the parties, just as much as the Board lacks the authority to relieve a party from obligations under a term of the collective agreement on the basis of what it views to be reasonable or fair. That would run directly counter to the long recognized principle that the efficacy of settlements is a fundamental and necessary part of the grievance and arbitration process under collective agreements, and must be upheld.

13For all of the foregoing reasons the Board finds that the grievance referred to it was settled on July 16, 2013, and that the terms of that settlement as set out in the draft minutes (exhibit #1 in this proceeding) are in effect. Accordingly, the grievance is no longer arbitrable and is hereby dismissed.