GSB# 2015-0556

UNION# 2015-0368-0175

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

HEARINGS

December 6, 2017 and February 20, 2018

DECISION

1On February 19, 2015, the Grievor, Carol Kolmann, filed a grievance alleging that the “Employer has failed to keep my settlement confidential. …” It is alleged that a copy of the Grievor’s November 24, 2014 Memorandum of Settlement, in its entirety, was placed into her staff services personnel file. The Employer denies this allegation.

Facts

2The settlement referred to was signed on November 24, 2014. It consists of two pages of terms, paragraphs 1-12, with signatures, followed by Schedule A, a two-page Accommodation Plan. Schedule A, among other things, directs that communications regarding the Grievor’s accommodation, whenever possible, “will be made directly with Greer Thornbury (or her replacement)....” Paragraph 11 of the Memorandum of Settlement (MOS) states:

The monetary provisions of this Settlement and Release is confidential between the Parties and shall not be disclosed by any of them to any other person except for the purpose of implementing or enforcing the terms of the Settlement and Release, to immediate family of the Grievor or where required by law.

3The Grievor testified that near the end of December 2014 or early January 2015, she went to look at her staff services file in the Staff Services Office. She testified that her file was placed on the desk of administrative assistant Jackie Ricketts. Ms. Ricketts then left the room. When she opened the file, the MOS was there. It consisted of four sheets and a sticky note. Ms. Rickett’s was not there at the time, but she stated that Jessica Hutton, the Manager of Staff Services, was there. She stated that she told Ms. Hutton that the MOS should not be there; it should be downstairs in the front office, and Ms. Hutton replied, “I don’t know why it’s here either.” She then stated that she asked Ms. Hutton for a copy of the MOS, which she placed in an envelope, but that she provided only pages 1 and 2, not Schedule A, and there was no sticky note. It was not until re-examination, that the Grievor clarified that she did not ask Ms. Hutton to copy the document during this visit, but did so in February, after the holiday. She did not check the envelope until she got home. She then discovered that only pages 1 and 2 were photocopied, and there was no sticky note. She did not raise the issue again with Ms. Hutton. On cross-examination, she stated that Ms. Ricketts, as the “only secretary, knows what in there.” She did not see Ms. Ricketts put the MOS into her file.

4Ms. Rickett’s testified that she was the Staff Services Administrative Assistant from 2012 to early 2017. She was responsible for filing documents in employee personnel files as well as entering attendance information. She did not recall seeing the Grievor’s MOS in her file. Instead, there was Schedule A, which she described as “one sheet, doubled sided”, typed. There were “no other documents.” When asked if she had seen the monetary provisions of the MOS, she replied, “no, never.” On cross-examination, she was unsure when she saw Schedule A, and acknowledged that it could have been after the Grievor filed this grievance. She was not sure if the Grievor came to see her file more than one time.

5Ms. Jessica Hutton was also called to testify. The need to call her as a witness did not become clear until the Grievor’s testimony. It was the Employer’s initial understanding that the Grievor’s conversation about the MOS had been with Ms. Ricketts. But in her testimony, the Grievor stated that it had been with Ms. Hutton.

6Ms. Hutton had been Manager Staff Services for about five years, until March 2017. Although she knew the Grievor and had met with her many times in Staff Services, she did not recall meeting with her about her MOS. As the Manager, she had access to employee personnel files. She recalled seeing one page of the MOS, concerning her accommodation and that all interactions had to go through Greer Thornbury. Schedule A “look[ed] familiar” to her, although she could not say that was the document she saw. When showed the front page of the MOS, which contains the monetary part of the settlement, she said that she had not seen that, saying, “this I didn’t see.” She vaguely recalled meeting with the Grievor in either late 2014 or early 2015, but did not recall about what. She did not recall being asked to photocopy a MOS. She testified that she was not aware of any monetary amounts paid to the Grievor through an MOS.

Reasons for Decision

7This case depends on whether the Union has met its onus of establishing, on the balance of probabilities, that the Employer breached the confidentiality provisions in the MOS – whether the Employer failed to keep the monetary terms of her settlement confidential, as alleged in the grievance.

8The parties both agree on the importance of settlements and the importance of confidentiality. They disagree, however, on whether the onus was met.

9In the Union’s view, the Grievor’s evidence that she saw the full MOS in her staff services file was credible, and there was no reason for her to make this up. It submits that she had a “positive recollection” whereas the Employer’s witnesses had a “negative recollection” – they simply did not remember. It submits that the Grievor’s evidence establishes that Staff Services had an unredacted copy of the MOS in her file and that was a breach of the confidentiality provisions contained in the MOS. It accepts that Schedule A was properly in her file, but not the first two pages of the MOS.

10In the Employer’s view, the Union must establish the breach by “clear and cogent” evidence and it failed to do so. It asserts that, to the contrary, the evidence establishes that the only document in regard to the MOS that was in the Grievor’s staff services file was Schedule A, the Accommodation Plan. It submits that both Ms. Ricketts and Ms. Hutton were clear that they never saw the full MOS in her file; they never saw any monetary provision in an MOS. In the Employer’s view, neither one had a reason to lie. The Employer also notes that the Union presented no corroborating evidence – no witness who testified that they saw the MOS or heard about its financial terms.

11After having carefully considered the testimony presented at the hearing – from the Grievor as well as Ms. Ricketts and Ms. Hutton – I find that the evidence stands in equipoise – the evidence is evenly balanced. I find the Grievor credible that she saw the full MOS in her staff services file. I find Ms. Ricketts, who was responsible for filing employee documents and pulled the Grievor’s file for her to review, to be credible when she said only Schedule A was in the file and that she “never” saw the full MOS. Likewise, I found Ms. Hutton credible that she did not see the full MOS or the financial terms of the settlement. Neither of them had a reason to lie about what they saw in her file.

12As stated in Evidence and Procedure in Canadian Labour Arbitration, Gorsky/Usprich/Brandt (Carswell, 1997), at Section 9-3 in regard to “Onus of Proof”, “[t]he onus of proof becomes a tie-breaker whenever the evidence of the opposing parties is evenly balanced with respect to establishing the essential facts in a case.” It further quotes Robins v. National Trust Co. [2917] 2 D.L.R. 97, at 101, as follows:

[O]nus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no sure conclusion. Then the onus will determine the matter. …

13In this case, the “balance of probability” standard requires a determination that the evidence makes it “more likely than not” that the full MOS was placed in the Grievor’s staff services file. On the evidence presented, I cannot make that determination. The Employer’s witnesses, in my view, had more than a “negative recollection” compared to the Grievor’s “positive recollection.” They were both clear that they had not seen the full MOS, only Schedule A or a document similar to Schedule A. I find no basis to credit the Grievor’s evidence over the evidence of Ms. Ricketts and Ms. Hutton. Accordingly, the Union did not sustain its onus of establishing a beach of the confidentiality provisions in MOS.

14For the reasons expressed above, the grievance must therefore be dismissed.