GSB#2014-3795, 2014-3796, 2014-3797, 2014-3798, 2014-3799

UNION#2014-0582-0046, 2014-0582-0047, 2014-0582-0048, 2014-0582-0049,

2014-0582-0050

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Samsone)

Union

• and -

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

Employer

BEFORE

Christopher Albertyn

Vice-Chair

FOR THE UNION

Craig Flood Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 18, 2016

Decision

The issue

1The issue decided by this decision is whether five grievances (numbered by the parties as #432 of November 12, 2014 (OPSEU Grievance #2014-0582-0046); #433 of November 13, 2014 (#2014-0582-0047); #434 of November 13, 2014 (#2014-0582-0048); #435 of November 13, 2014 (#2014-0582-0049); and #436 of November 13, 2014 (#2014-0582-0050)) were resolved by a Memorandum of Settlement concluded between the parties (and the Grievor) on August 15, 2012.

The Memorandum of Settlement

2The parties entered into a Memorandum of Settlement confidential to them and for which monetary consideration was provided. The Memorandum of Settlement “fully and finally” resolved various matters between them. The relevant portions of the Memorandum read:

WHEREAS the Grievor and the Union have filed the above noted 11 grievances [they were listed above]; and

WHEREAS the Grievor has filed many disputes including that the Employer failed to properly accommodate him pursuant to the Ontario Human Rights Code and a Workplace Discrimination and Harassment Complaint; and

WHEREAS the parties wish to fully and finally resolve all of these employment related disputes; and

NOW THEREFORE the parties agree to a full and final settlement of all employment related matters up to the date of signing of this Memorandum of Agreement without prejudice and without precedent on the following terms:

1. [the consideration paid to the Grievor];

2. The Union and the Grievor agree to withdraw the above noted grievances filed on behalf of the Grievor up to the date of this Memorandum of Settlement (MOS) and to so notify the Grievance Settlement Board. Nothing herein precludes the Grievor’s interest with respect to any group grievance of which he is or may be a part.

3. The Grievor and the Union agree that no further action is required by the Employer with respect to any WDHP complaint filed by the Grievor, subject to any legal requirement.

4. The Employer acknowledges that the Grievor has a current claim for benefits in WSIB Claim No. … and an appeal in WSIAT file No. …, including a constitutional challenge to the Workplace Safety and Insurance Act and that this MOS does not impact that claim and/or appeal whatsoever.

5. The Parties acknowledge that the Grievor is currently in receipt of LTIP benefits. The Employer acknowledges that should the Grievor be medically approved to return to work in any position that they have an obligation pursuant to the Ontario Human Rights Code to offer reasonable accommodation which addresses any medical restrictions he may have at that time. The Employer shall provide assistance where necessary to the Grievor with respect to his claim(s) for benefits for himself or his dependents.

6. In consideration of the above, the Grievor and the Union agree to release and forever discharge the Crown in Right of Ontario and the Employer, its servants, agents, directors of and from all actions, causes of actions, claims and demands of every nature and kind arising out of these grievances or circumstances and facts leading up to these grievances, including but not limited to all claims under the Public Service of Ontario Act, Human Rights Code, the Ombudsman’s Act and the Employment Standards Act of which the Grievor is currently aware. The Grievor and the Union further agree that any facts related to the grievances, will not form the basis of any future proceeding against the Crown in Right of Ontario, the Employer, its servants, agents, and directors. The Union and the grievor agree that any and all grievances and human rights applications are withdrawn.

7. This written MOS represents the complete settlement agreement between the parties in relation to all employment related matters between the parties. The parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this written settlement.

8. This MOS and Release are confidential between the Grievor, the Union and the Employer and shall not be disclosed by any of them to any other person except to immediate family, legal and financial advisors of the Grievor and for the purpose of implementing or enforcing the terms of the Settlement and ‘Release and subject to any legal requirement.

9. The Parties agree that Vice-Chair Albertyn-shall remain seized with respect to this MOS for the purposes of interpretation and implementation. Any disputes about the propriety of communications regarding the Grievor’s employment or the terms of this settlement shall go back before Vice-Chair Albertyn for resolution.

3The parties agreed that I remained seized of the interpretation and implementation of the Memorandum of Settlement.

4The parties intended, by concluding the Memorandum of Settlement, that all employment related matters of the Grievor “up to the date of signing” (other than any group grievance of which the Grievor was a part and the WSIB and WSIAT matter expressly exempted in paragraphs 2 and 4 of the Memorandum) were resolved.

5Subject to the exclusions in paragraphs 2 and 4, it is clear that the resolution of the employment related matters of the Grievor up to the date of signing to mean any employment issue he was aware of up to the date he entered in the Memorandum of Settlement. There was a full and final resolution of “all employment related matters” up to the date of signing. That was not restricted to disputes already declared between the parties. It included all matters that the Grievor had knowledge of at that time (as explained in the release at para. 6) and that he could have pursued.

6The five grievances the Grievor wishes to pursue are not part of any group grievance, and they are not the WSIB and WSIAT matter referred to in paragraph 4 of the Memorandum of Settlement.

7The question is whether the issues in the five 2014 grievances were live employment issues for the Grievor in August 2012 when the Memorandum of Settlement was concluded.

8On August 9, 2016, the Union has provided particulars of the five 2014 grievances. The issue I describe in each grievance is taken from the grievance itself and the particulars provided by the Union.

Grievance #432

9Grievance #432 of November 12, 2014 is the only one of the five grievances that post-dates the Memorandum of Settlement. It concerns the very issue described in Ontario Public Service Employees Union (Samsone) v Ontario (Community Safety and Correctional Services), 2013 CanLII 42623 (ON GSB). That decision involved the same issue, the same parties, and a final decision on the merits was given. As the Employer submits, the doctrine of res judicata applies. That decision precludes the Union and the Grievor from pursuing grievance #432, which, if permitted to continue, would involve a re-litigation of the same claim. It is dismissed.

The other four grievances generally

10The circumstances giving rise to other four grievances all pre-date the Memorandum of Settlement. This is apparent from the particulars provided by the Union. The Employer argues that, as a consequence, those grievances were contemplated by the parties when the Memorandum of Settlement was concluded; they form part of “the full and final settlement of all employment related matters up to the date of signing”.

11I agree with this submission for the reason that the Grievor was aware of all of the circumstances and issues involved in each of the four remaining grievances at the time he and the Union entered into the Memorandum of Settlement. Accordingly, when the Memorandum was concluded, the settlement of those issues was expressly part of the overall settlement reached. I am therefore seized of the determination of those grievances and I find that they were resolved by the Memorandum of Settlement.

Grievances #433 and #435

12The facts giving rise Grievances #433 and #435 concern the allegation that the Employer failed to properly accommodate the Grievor and to appropriately recognize his medical circumstances. The facts of alleged discrimination and failure to accommodate occurred between 2005 and October 31, 2009. Those facts are wholly subsumed by the resolution of the Grievor’s employment related disputes in the Memorandum of Settlement.

13In the Memorandum of Settlement the parties separately referenced the 11 grievances the Grievor had filed from the many disputes he had filed, including for a failure to properly accommodate him pursuant to the Ontario Human Rights Code. The facts alleged by the Grievor giving cause for Grievances #433 and #435 are of this sort. They complain of a failure to accommodate him during the period 2005 and 2009. That issue formed part of the resolution in the Memorandum of Settlement.

14Besides this general resolution of these two grievances by the Memorandum of Settlement, the facts referred are the same as those contained in GSB 2008-1184 / OPSEU Grievance 2008-0302-0001, which was one of the 11 grievances settled by the Memorandum of Settlement.

Grievance #434

15The facts giving rise to this grievance are set out in paragraphs 69 to 79 of the Union’s particulars. All of the facts alleged occurred in the period 2004 to February 1, 2005, well within the period covered by the Memorandum of Settlement. The Grievor was aware of those facts at the time he entered into the Memorandum of Settlement. For that reason they cannot be pursued.

16There is another reason, though, why Grievance #434 cannot proceed. All of the incidents described in the Union’s particulars were addressed by the Board in Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2010 CanLII 52660 (ON GSB). In that case the Union sought to pursue the allegations that the Grievor makes in Grievance #434.The Employer objected to the failure by the Grievor and the Union to comply with the parties’ grievance procedure. The Employer sought dismissal of the grievances, claiming they were not arbitrable. The Board upheld that objection and dismissed the grievances.

17As the Employer now argues, Grievance #434 is an attempt to revive the grievances that were dismissed in that decision. That is an abuse of process. For this reason too I find that the grievance cannot be pursued.

Grievance #436

18As mentioned, the allegations of this grievance are that the Employer failed in various ways to assist the Grievor to obtain a treatment plan for his disability. All of the facts alleged occurred in the period 2005 to 2009. The Grievor was aware of those facts at the time he entered into the Memorandum of Settlement. They are covered by the resolution of all his disputes with the Employer arising from his disability and the Employer’s alleged failure to accommodate him. For this reason Grievance #436 cannot be pursued.

19There is a further basis upon which this grievance cannot proceed. The remedy sought is that the Employer pay for treatment options not covered by insured benefits or WSIB benefits. The parties addressed this issue in para. 4 of the Memorandum of Settlement. Despite the consideration paid to the Grievor as part of the resolution of his grievances and of his employment and accommodation related disputes with the Employer, the Employer agreed the Memorandum of Settlement did not affect his entitlement to pursue his remedies for WSIB benefits.

20Also, the issue of an employee’s entitlement to benefits beyond those covered by insured benefits or WSIB benefits was addressed in Safety and Correctional Services and Ministry of Children and Youth Services), 2010 CanLII 28621 (ON GSB) (“the Monk decision”), and on review in OPSEU v. Ontario et al, 2012 ONSC 2348. On the basis of those decisions, the Board cannot grant the remedy sought in Grievance #436. For this reason too, it is dismissed.

21The Board has explained the importance of parties being able to rely upon settlements between as final resolution of the disputes covered by those settlements, in Ontario Public Service Employees Union (Abick) v Ontario (Municipal Affairs and Housing), 2014 CanLII 74770 (ON GSB). The principle applies in this case too. The Employer is entitled to rely upon the finality of the settlement agreement it concluded in the Memorandum of Settlement.

22The parties intention in the Memorandum of Settlement was to resolve all employment related issues between them concerning the Grievor at that time, of which he was aware at the time, save for two exceptions: the Grievor’s part in group grievances (under para. 2) and the Grievor’s WSIB and WSIAT claims for benefits (under para. 4). For all the rest, they were resolved, including all of the facts and circumstances giving rise to the claims the Grievor has in the four grievances, #433, #434, #435 and #436.

23For the reasons given, all five grievances (#432, #433, #434, #435 and #436) are dismissed.