GSB#2014-2593

UNION#2013-0542-0026

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Greco)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 12, 2015

Decision

1Ms. Felicia Greco, (“Grievor”), who is employed as a Driver Control Analyst, filed a grievance dated December 4, 2013. It essentially alleges harassment and failure to provide a healthy and safe work environment on the part of management.

2When the grievance came before the Board pursuant to the mediation-arbitration provisions in article 22.16 of the collective agreement, the parties jointly requested that the Board rule on certain preliminary issues raised by the employer relating to the particulars filed by the union. There is no issue about paragraphs 1 to 15 of the particulars. However, the employer contends that the union is not entitled to rely on the rest of the paragraphs. It is submitted that paragraphs 16 to 24 resurrect issues that were settled by the parties following the filing of a previous grievance. It is further submitted that paragraphs 25-26 are not properly part of the instant grievance since they relate to alleged management conduct subsequent to the filing of the instant grievance. Submissions were made on these issues and numerous authorities were cited.

Prior Settlement

3It suffices to note that paragraphs 16 to 24 of the particulars set out facts pertaining to interaction between the grievor and her manager Ms. Maria Kuszniryk, relating to a medical note dated March 4, 2013, issued by the grievor’s physician. The grievor had filed a grievance relating to the employer’s conduct in that regard, and the grievance was scheduled for hearing before the Board in February 2015.

4The union conceded that the substantive issues raised in that grievance were resolved by the parties prior to the scheduled hearing, and that the union withdrew the grievance “without prejudice”. The employer filed before me an unsigned draft of Minutes of Settlement in that regard.

5The employer submits that the facts in paragraphs 16-24 of the union’s particulars raise the very same issues raised and settled in that grievance, and that the grievance itself was withdrawn. Counsel submitted that it is not permissible for the union to resurrect those issues in the instant grievance. The Board was urged to strike the particulars in question and refuse to hear evidence relating to those issues.

6Union counsel argued that in the particular circumstances of this case the Board should allow the union to lead the evidence in question. It was submitted that while the substantive issues in dispute were settled, the settlement was not achieved with the assistance of a Vice-Chair at the Board. It was negotiated at the local level by unsophisticated local union officials without assistance of legal counsel or a union grievance officer. Moreover, Minutes of Settlement were not signed off. Even in the unsigned draft of the minutes, the settlement is stated to be without prejudice. It was submitted that “without prejudice” means that the union was not making any concessions on the facts it had alleged.

7She submitted that while the unsigned draft minutes prepared by the employer include “confidentiality” and “release” language, the union had not at any time agreed to confidentiality or release. In the absence of agreement on release, it is not reasonable to infer that by settling and withdrawing the grievance the union was undertaking not to rely on the facts in the future for all purposes.

8Union counsel argued that the union was not seeking to relitigate the allegations it had made in the previous grievance. It was not seeking a remedy for that alleged conduct. It is simply relying on the facts underlying the settled grievance to establish a pattern of harassment by the employer. It was pointed out that while the grievance itself was settled and withdrawn, the grievor has not to date received any explanation as to how and why the medical note in question was handled the way it was done. In the settlement of the previous grievance the employer made a number of undertakings. In the union’s view, the employer had not fully complied with those. This means that the grievor derived no benefit in return for settling and withdrawing her grievance. She submitted that while the union is not asserting bad faith, the employer had been negligent in failing to carry out the undertakings it had made, which is akin to bad faith.

9The union relied on a number of decisions of this Board where it relied on the existence of “release clauses” in the Minutes of Settlement, in holding that the union was not entitled to rely on issues settled. She again emphasized that in the instant the union had not agreed to any release language. Counsel submitted that the Board ought to allow the union to rely on the particulars in question. In the alternative, it was submitted that the evidence it seeks to adduce should be allowed because it would be helpful to the Board in assessing whether the employer, subsequent to the prior settlement, continued to harass the grievor.

10In reply, employer counsel submitted that the case law does not support a proposition that in the absence of release language, the union is free to rely on issues settled as long as it was not seeking a remedy. The cases turn on the labour relations policy recognizing the sanctity of settlements, and the principle that parties should be held to the agreement made. The Board referred to release language in the decisions the union relied on, only because that language existed in the minutes of settlement. There is no suggestion in those decisions that but for the release language, the result would have been different. He submitted that if the union was of the view that the employer had failed to comply with terms of the settlement, the union had ways of enforcing the settlement, and it should have acted at that time.

11Employer counsel submitted that if the parties are not held to terms of settlement of a grievance because it was settled at the local level, the parties would never settle grievances at the local level. This would not make good labour relations policy because settlement at local level should be encouraged, not discouraged. Counsel urged the Board to uphold the principle of sanctity of settlements and strike the particulars in question.

12Having considered the facts, the submissions, and the authorities cited by the parties, the Board upholds the employer’s position. The sanctity of settlements reached between the parties is paramount. The parties must be held to settlement of grievances except in very exceptional circumstances. This is so with or without negotiated release language. No exceptional circumstances exist here. The employer does not concede any wrong-doing in relation to the allegations made in the settled grievance. Therefore, despite the union’s submission that it was not seeking to litigate those issues, to show a pattern of harassment or for any other purpose, those issues would have to be litigated. That would be contrary to the intention of the parties when they settled the previous grievance. When parties settle a grievance, they are entitled to expect that they would not have to litigate the issues settled. For those reasons, the particulars in question are struck. The union is not allowed to lead evidence in relation to those.

Post-Grievance Conduct

13Employer counsel submitted that the general principle is that post-grievance evidence is not admissible. While there are some exceptions to this principle, none apply here. Paragraphs 25 and 26 of the union’s particulars relate to a WDHP complaint filed by the grievor with respect to a direction by her then manager, Ms. Judy Taggart on August 14, 2014, that before she would be allowed to return to work following six days off sick, she needed to present a medical certificate that she was fit to return. The instant grievance filed on December 13, 2013 is about an allegation that in November 2013 a different manager, Ms. Kuszniryk, improperly sent a medical note the grievor had submitted in the past to a different department of the Ministry. Thus there was no connection between the two.

14Union counsel argued that the post-grievance conduct should be heard as part of the instant grievance for two reasons. First, that alleged conduct is similar to conduct that triggered the instant grievance, in that both relate to improper conduct by the employer relating to the grievor’s medical notes. Secondly, the post-grievance conduct is the continuation of a pattern, and would be useful in proving the allegations that led to the filing of the grievance. It was noted that unlike other types of grievance, for example an overtime pay claim, harassment involves a pattern of conduct. Sometimes an individual event by itself may not be enough to establish harassment, but a series of such similar events may be sufficient. It was submitted that given the inherent nature of harassment, the union ought not be required to file grievances each time an event occurs. Reliance was placed on authorities standing for the proposition that grievances should be read liberally.

15In reply, counsel for the employer pointed out that the harassment allegations in the instant grievance related to conduct on the part of Ms. Maria Kuszniryk. The alleged post-grievance conduct is attributed to a different manager, Ms. Judy Taggart. Therefore the post-grievance conduct would not establish a pattern of harassment. Counsel submitted that the union is not being required to grieve each event constituting a pattern of harassment. The alleged harassers are different. In addition there was a gap of some 9 months between the conduct alleged in the grievance and the alleged post-grievance conduct. There is no allegation of misconduct in the intervening 9 month period. For that reason also, it cannot be said that the conduct in August 2014 was the continuation of the conduct that allegedly took place 9 months earlier.

16Having considered the respective submissions of the parties and the authorities relied on, the Board again upholds the employer’s position. In the circumstances of this case, the conduct attributed to Ms. Taggart in August 2014, could not, in the Board’s view, in any way assist in determining whether or not Ms. Kuszniryk harassed the grievor in November 2013. The common element, that both allegations involve the grievor’s medical notes is simply not enough to tie in alleged events which occurred nine months after the grievance was filed. Therefore, those particulars are also struck and the union is not allowed to lead evidence in that regard.

17The Board remains seized.