GSB# 2013-0407
UNION# 2013-0368-0047
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Kolmann)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Randi H. Abramsky
Arbitrator
FOR THE UNION
Richard Blair Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel
HEARING
December 6, 2017
DECISION
1On March 25, 2013, the Grievor, Carol Kolmann, filed a grievance alleging that the Employer, in violation of both the collective agreement and the Ontario Human Rights Code, was “providing erroneous information to provider[s] of the program designed to sway their opinions against staff and setting them up for failure. …” She filed the grievance after she saw, in her Occupational Health file, two “draft” letters from the Employer, dated June 3, 2011, to Independent Medical Evaluation specialists that the grievor was sent to as part of the Grievor’s return to work and accommodation process. She first saw these letters in early 2013.
Facts
2It is undisputed that in late Winter and early Spring 2011, the Employer decided that the Grievor would not be permitted to return to work without independent medical evaluations. Independent medical examinations (IMEs) were set up during the Summer of 2011, with a psychiatrist, an orthopaedic surgeon, and a functional abilities assessor.
3Between March 4, 2010 and November 30, 2012, the grievor filed numerous grievances alleging violations of the collective agreement and the Ontario Human Rights Code, as well as complaints with the Ontario Human Rights Tribunal. It is undisputed that a number of these grievances pertain to the Employer’s demand that she undergo the three independent medical examinations, and her undergoing those examinations.
4On November 28, 2014, a Memorandum of Settlement was signed by the parties, and the Grievor, for a “full and final settlement of all current grievances” which included the following paragraphs:
The Grievor acknowledges, with the advice of her union representative, that this Memorandum of Settlement constitutes full and final settlement of any and all claims, complaints, grievances, or actions arising up to November 30, 2012 out of this matter or facts related to this matter that the Grievor has or may have against the Employer… whether under any statute, regulation, policy, contract or at law…
The terms of this written Memorandum of Settlement represents the complete settlement agreement between the parties in relation to the above noted grievance and any related matters. …
5The Grievor testified that she discovered two “draft” letters in her Occupational Health file in early 2013. She had not seen these letters before. The word “draft” is handwritten on top and there is no doctor’s name on the document. It simply states: “Dear Doctor:” There was no evidence that these letters were actually sent to the IME specialists. The person who authored the letters has since passed away. The letters are dated June 3, 2011. The Grievor attended at three IME evaluations in the summer of 2011, with reports issued in August 2011.
6The Grievor testified that she was surprised and upset by the content of the letters which, in her view, contained misrepresentations regarding her sick leave and duties, and included biased comments by the Employer. She was “shocked” by what she read in the letters, which she felt “belittled” her.
7She acknowledged, on cross-examination, that she had read the IME reports before she signed the Memorandum of Settlement and knew that the IME process had been settled.
Reasons for Decision
8Having carefully considered the grievance, the testimony of the Grievor, the documentary evidence, and the arguments of the parties, I conclude that this grievance must be dismissed. It raises issues related to matters that were “fully and finally” settled in the prior Memorandum of Settlement.
9That settlement, by its terms, did not just settle the existing grievances. Under paragraph 7 it was a “full and final settlement of any and all claims, complaints, grievances or actions arising up to November 30, 2012 out of this matter or facts related to this matter that the Grievor has or may have against the Employer…” (emphasis added). Under these terms, the Grievor settled not only her existing claims related to the IME and accommodation process, but also any potential claims based on “facts related to this matter” that she “has or may have…” The “draft” letters that she found in her Occupational Health file in early 2013 clearly relate to the grievances that were settled, and the facts surrounding those grievances. This paragraph, along with Paragraph 9 of the Memorandum of Settlement precludes her from raising those issues in this grievance.
10The Union asserts that these “draft” letters did not come to light until early 2013, after the period covered by the Memorandum of Settlement. It further submits that these letters remained in her file after the Memorandum of Settlement. It argues that these letters constitute a separate and distinct event, which is not covered by the Memorandum of Settlement.
11With respect, I am not persuaded by the Union’s arguments. The Memorandum of Settlement was not finalized until November 28, 2014, and these letters were found in early 2013. Consequently, it is not at all clear that they remained in her file after the Memorandum of Settlement. Nor am I persuaded that the letters constitute a “separate and distinct event.” Even assuming, without deciding, that they were sent, as written, to the IME specialists, they were part of the Grievor’s 2011 return to work and accommodation process and grievances that were “fully and finally” settled by the parties. They cannot be separated from that process. Likewise, the fact that the Grievor did not discover the letters until early 2013 does not assist her. The Memorandum of Settlement precluded subsequent claims “related to” the settled matters, including claims that the “Grievor has or may have against the Employer…”
12As recognized by the GSB in many prior decisions, settlements are to be encouraged and honoured. Once a settlement has been achieved, parties must feel confident that they can rely on it. Absent compelling reasons,