GSB#2013-1624, 2013-3506, 2013-3507, 2013-3557, 2013-3558

UNION#2013-0701-0008, 2013-0701-0017, 2013-0701-0018, 2014-0701-0002, 2014-0701-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Abick)

Union

• and -

The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing)

Employer

BEFORE

David R. Williamson

Vice-Chair

FOR THE UNION

Rose Basa Dewart Gleason LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 14, October 21, 2014

Decision

1During the years 2013 and 2014, Mr. Scott Abick filed five grievances relating to workplace issues. The matters pertaining to these grievances remained unresolved and came to be heard at arbitration on April 14, 2014. At the subsequent day of hearing on October 21, 2014, the union raised a preliminary matter on which it sought a decision. This is that decision.

2On April 12, 2011, a Memorandum of Settlement was reached in the work place between the parties, and signed by Mr. Abick, to resolve two grievances that had been filed by Mr. Abick on December 24, 2010. In the first of these two grievances Mr. Abick claimed that the employer had not taken steps to correct bullying that Mr. Abick alleged had occurred in his workplace and that had put him in an unsafe and unhealthy work environment. In the second, Mr. Abick grieved that he was not being allowed to return to work from a leave of absence even though he had provided management with notification in November 2010 of his request to return to work in his home position.

3At the hearing held October 21, 2014, the union submitted that the afore-referenced Memorandum of Settlement was concluded in the absence of full disclosure to the grievor. As such, the union makes the request to have this Memorandum of Settlement opened up in order that the union may place before this Arbitrator the facts of the two 2010 grievances of Mr. Abick in order to provide context in hearing the five grievances filed by him in 2013 and 2014. The parties addressed this request by way of placing before the undersigned Arbitrator a number of documents dated between January 2010 to January 2011 inclusive, the April 2011 Memorandum of Settlement, together with the viva voce evidence on this matter from Mr. Abick. Following this, the parties then made their submissions on the union's request.

4The evidence discloses that Mr. Abick commenced work for the Ministry of Municipal Affairs and Housing in March 2000 and that in early 2010, following the arrival of a new manager that he considered to be aggressive and bullying, sought a temporary secondment to another Ministry. Mr. Abick was seconded to the Ministry of Northern Development and Mines from January 2010 to June 2010. Following this Mr. Abick went on an unpaid leave of absence in that, as he stated, he did not wish to return to work under the same manager as before his secondment in circumstances where he considered his concerns and complaints about his working environment had not been addressed during his secondment.

5During November 2010, by way of a series of e-mails, Mr. Abick gave notice to his Interim Director, Mr. Ralph Walton, that he wanted to return to work from his leave of absence earlier than expected because he could not afford to remain off work any longer. He also requested in his e-mails at this time that the concerns about his working environment he had raised in e-mails and in person in January 2010 with his then Director, Mr. Ian Smith, be looked into and addressed. Mr. Abick referenced in his e-mail of November 1, 2010 what he stated to be the aggressive behaviour of both his manager as of January 2010, and that manager's predecessor.

6Mr. Walton arranged to meet with Mr. Abick on November 30, 2010 and informed him that he was welcome to review his corporate personnel file. In order to prepare for this meeting, Mr. Walton asked Mr. Abick to provide him with specific instances, examples, and particulars of where Mr. Abick's manager as of January 2010 had acted aggressively towards the grievor and created an unhealthy and hostile work environment. Mr. Abick responded that the specifics and the details were in the e-mails he had sent of which he no longer had the copies he had sent to his personal e-mail account as he had changed his e-mail provider in the meantime, and that he did not have access to his government e-mail account as he was on leave of absence.

7Subsequently the meeting date was changed to December 14, 2010 to accommodate the arrival on December 6th of the new Director, Mr. Joe van Koeverden. In the interim Mr. Walton informed Mr. Abick that the employer was prepared to share e-mails initiated by Mr. Abick together with any corresponding response by management.

8By e-mail dated December 9, 2010, Mr. Walton again reiterated management's interest in receiving from Mr. Abick specific examples of where his manager created an unhealthy and hostile work environment, of where and how his manager approached him aggressively with respect to attendance and performance, and examples of where his manager yelled. Also in this December 9, 2010 e-mail, Mr. Walton notified Mr. Abick that he was reviewing these afore-referenced e-mails with Mr. van Koeverden and that he would provide Mr. Abick with a paper copy when the review was completed. In this same e-mail Mr. Walton specifically stated that the e-mails being provided should not be considered a comprehensive collection of documents.

9On December 13, 2010, Mr. van Koeverden sent these afore-referenced e-mails to Mr. Abick by e-mail and informed him that the hard copies had been put into a document which was available for him to pick up from the office. The meeting scheduled for December 14, 2010 was rearranged to a later date as Mr. Abick had by that time left for the United States. Mr. Abick returned to work on January 10, 2011, at which time he met with Mr. van Koeverden who, according to Mr. Abick, was dismissive of his concerns and that no action was taken then or subsequently to address his complaints.

10On April 12, 2011, a Memorandum of Settlement was reached in the work place between the union and the employer, and signed by Mr. Abick, to resolve the two grievances that had been filed by Mr. Abick on December 24, 2010. By this Memorandum the agreed upon terms remained confidential, with the grievor acknowledging he voluntarily entered into the settlement and was fully informed of and understands the consequences of this settlement, and that the union and the grievor agreed the two grievances were fully and finally resolved and withdrawn.

11In June 2011, and after Mr. van Koeverden had left the employ of the Ontario Public Service, Mr. Abick found his own personnel file on his chair one day. Among other items Mr. Abick found there were seven of his own e-mails together with some responses from management from January 2010, June 2010, and July 2010, that had not been provided to him by the employer in response to his request of November 2010. The file also contained an e-mail dated December 9, 2010 from Ms. Edith Brethour, an Employee Relations Advisor, suggesting that for the present time those seven e-mails not be shared with Mr. Abick and stating they would provide the grievor with a solid basis for his complaint if shared.

12In his evidence Mr. Abick stated that he believes these seven sets of e-mails were deliberately withheld by the employer in order to induce him to settle his two grievances dated December 24, 2010. It is Mr. Abick's testimony that had he been in possession of these seven e-mails he would never have settled these two grievances he had filed on December 24, 2010, and entered into a Memorandum of Settlement.

13In cross-examination Mr. Abick agreed that at the time he signed the Memorandum of Settlement in April 2011 he knew the subject matter of what was contained in those seven sets of e-mails and that he himself had written most of what was in these e-mails. It is also Mr. Abick's evidence that he cannot pin-point anything in these seven sets of e-mails that would have caused him to not enter into the Memorandum of Settlement. Mr. Abick testified that after he saw the file containing these seven e-mails he waited a month or so before he mentioned this to the union, but that he did not raise with the union that he would never have signed the Memorandum of Settlement had he known these seven e-mails had not been provided to him. The importance of these seven e-mails by Mr. Abick's evidence is that they added to the file and helped to build the story of what had been taking place.

14The union takes the position that, for the purposes of providing context for the five grievances being heard at arbitration, the facts pertaining to the earlier two grievances of Mr. Abick also be heard. These two grievances were previously settled by the parties in the form of a signed Memorandum of Settlement dated April 11, 2011. The union submits that the employer acted in bad faith prior to settling these two grievances by deliberately withholding documents that it was aware would give the grievor an advantage and that as such this meets the test for fraud. The union submits that as such there are compelling circumstances to go behind and open up the Memorandum of Settlement and allow the grievor to put forward evidence on the matters that gave rise to his two grievances dated December 24, 2010. In support of its position and submission the union made reference to the following arbitration cases: Re Ministry of the Environment and OPSEU (McDonald) (2008), GSB # 2005-302 (Mikus); Re Conquest Carpets and LIUNA, Local 183 (2013), [2013] O.L.R.D. No. 2071 (McDermott); Re Securities Canada and United Steelworkers of America (2005), [2005] O.L.A.A. No. 203 (Starkman); and to Re Gould Manufacturing of Canada Ltd. and United Steelworkers of America (Esseltine Grievance) (1972), 1973 CanLII 846 (ON CA), 1 L.A.C. (2d) 314 (Shime).

15It is the position of the employer that this board has consistently recognized the principle of the sanctity of settlements and has held parties to their agreements. Only in exceptional circumstances, which do not exist here the employer submits, will the board permit evidence to be entered that relates to a settled grievance. In particular it is the submission of the employer that it did not engage in bad faith or fraud in reaching the 2011 settlement and that, absent such, the Memorandum of Settlement reached on April 12, 2011 should remain intact and not be opened up. The employer argues there was no bad faith or fraud on the part of Mr. Walton as firstly Mr. Walton informed Mr. Abick in writing that the batch of e-mails he was receiving was not the entire package, and secondly that there is no obligation in the collective agreement for the employer to produce anything at that stage in the process. Likewise the employer argued that there was no bad faith or fraud on the part of Ms. Brethour in that she did not mislead Mr. Abick in any way.

16The employer submits that Mr. Abick acknowledged that most, if not all, of the information contained in the seven sets of e-mails not produced by the employer Mr. Abick already knew, and so for him to say he was misled by not receiving them is not true. The employer notes that Mr. Abick's grievances of December 2010 relate to alleged incidents that took place some four years prior to now and that defending against these allegations in 2014 or 2015 would prejudice the employer given the significant lapse of time and subsequent change-over of management personnel. In support of its position and submission the employer made reference to the following arbitration cases: Re Ministry of Community Safety and Correctional Services and OPSEU (Hawkes) 2009, G.S.B. # 2007-2388 et al (Leighton); Re Ministry of Community Safety and Correctional Services and OPSEU (Fletcher) 2006, G.S.B. # 2004-0083 et al (Leighton); Re Ministry of Community Safety and Correctional Services and OPSEU (Ranger) 2005, G.S.B. # 2002-2375 (Leighton); and to Re Ministry of Community and Social Services and OPSEU (Union Grievance) (2014), G.S.B. # 2012-3909 (Petryshen).

17The issue present in the instant matter is whether evidence of events in 2010 that were the subject matter of grievances filed by Mr. Abick in December 2010, and settled by a Memorandum of Settlement in April 2011, should be admitted in the current proceedings. The union seeks to enter this evidence for the purpose of demonstrating a pattern of harassment and to give context for the five current grievances. As such, the board is being asked to admit evidence on matters that have already been settled. A review of board cases demonstrates that there is well established jurisprudence and practice on this matter.

18In Re McDonald Vice-Chair Mikus makes reference to the 1999 decision of Vice-Chair Knopf in the Re Harrison case where at page 11 Ms. Knopf makes reference to the 1998 Re Gottwald decision of Vice-Chair Leighton in the following way:

I must start with recognition of the policy considerations that govern this Board's enforcement of Memorandums of Agreement. In the Gottwald decision, supra, it was said:

The policy considerations behind giving effect to settlement agreements reached by parties to a grievance were noted in OPSEU (Policy Grievance) when Arbitrator Kaplan cited Landry-King 1593/84 (Knopf) where the Board held:

The Board wishes to do everything to foster and honor settlements reached by the parties. Once settlements are achieved parties must feel confident that they can rely on them. Otherwise, there would be no incentive for the parties to even attempt to settle matters. Unless there is a compelling reason why settlements once obtained cannot be honored by the parties, this Board should not even attempt to interfere with the settlement. (at 8-9).

Arbitrator Kaplan also cited Edgett 2476/90 (Dissanayake) where the Board held that:

Those policy considerations supporting the need to uphold the final and binding nature of grievance settlements recognized by private arbitrators and the Ontario Relations Board apply with equal vigor and force in proceedings before this board. The purpose of the pre-arbitration grievance procedure under the collective agreement is to provide the parties opportunity to resolve disputes promptly, informally and without the expense and delay of arbitration. Besides, it is generally accepted that a settlement reached between parties is a far preferable way of resolving a dispute than an award handed down by a third party. If the efficacy of the settlement is to be maintained, the parties must be held to their agreement. (at 10-11).

It is important for the Board to respect and honour settlements that the parties have achieved. The policy of the Board is to encourage settlement and to provide assistance for reaching the resolution of grievances. The adjudicative aspect of the Board should be seen as a final resort where the parties should only turn when there is no ability to reach a resolution on their own. The adjudicative powers of the Board should not be available to undo or deny settlements achieved by the parties unless there are compelling policy reasons why the settlement should not stand.

In my view, there are no such compelling reasons in the instant case.

19More recently in Re Hawkes (at p. 7), Vice-Chair Leighton wrote:

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 appear in some different guise." (as cited in Fletcher, supra, at p.8).

20On the basis of the foregoing board jurisprudence and practice it must be found that a Memorandum of Settlement must remain intact absent a finding of any compelling reasons to the contrary. In this regard it is the submission of the union that the circumstances under which the April 2011 Memorandum of Settlement was reached do indeed provide compelling reasons for admitting into evidence the facts of the December 2010 grievances that were settled by the parties in April 2011. The union contends that the employer acted in bad faith prior to settling these two grievances by deliberately withholding documents that it was aware would give the grievor an advantage and that this conduct is akin to fraud.

21Black's Law Dictionary defines the term "bad faith" in the following way:

Bad faith. The opposite of "good faith", generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive. Term bad faith" is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will. …….. An intentional tort which results from breach of duty imposed as a consequence of relationship established by contract.

22After filing his two grievances on December 24, 2010 Mr. Abick requested the employer provide him with copies of the e-mail correspondence he had previously engaged in with the employer regarding the concerns and complaints he had about his working environment. This request was made in circumstances where the instant collective agreement does not require a party to produce all arguably relevant documents to either the other party or the grievor following the filing of a grievance and before a matter is referred to arbitration. The employer subsequently provided Mr. Abick with a batch of e-mails and told him it was not the complete package. Some time after settling these grievances Mr. Abick found that the employer had chosen not to provide him with the full set of e-mail correspondence.

23The reason Mr. Abick requested this e-mail correspondence from the employer was because he had not kept his own copies of this correspondence, most of which he had written himself. This was not a case of the employer being asked to disclose new information which it declined to share in order to obtain some advantage. Mr. Abick had previously written or seen all the e-mails and there was nothing in the e-mails not provided by the employer that he did not already know. Indeed, in his testimony Mr. Abick was not able to identify a single new fact or piece of information in any one of the e-mails not provided to him by the employer that would have caused him to not have entered into the Memorandum of Settlement in April 2011. Accordingly, the finding must be that Mr. Abick had full knowledge of the facts pertaining to these grievances prior to signing the Memorandum of Settlement in April 2011.

24As such, and for all the foregoing reasons, it must be found that Mr. Abick was not misled or deceived on the facts by the employer and was not therefore improperly or dishonestly induced to sign the Memorandum of Settlement on April 12, 2011.

25Accordingly, absent compelling reasons to open up the April 12, 2011 Memorandum of Settlement, the employer's motion is granted. The facts pertaining to Mr. Abick's grievances filed December 24, 2010, shall not be entered into evidence in this proceeding.