GSB#1994-0232

UNION# 1994-0518-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sidhu)

Union

• and -

The Crown in Right of Ontario (Ministry of Agriculture, Food and Rural Affairs)

Employer

BEFORE

Bram Herlich

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 2, 2018 and May 14, 2019

Decision

1The initial settlement in this matter is now in its seventeenth year. This is the most recent of the implementation issues which have arisen several times since then. In each case, the alleged breach of the terms of the settlement is substantially the same, involving what might have reasonably been read as a secondary term of the parties’ agreement. It (initially) provided as follows:

The Employer agrees to provide the Grievor, Kam Sidhu, their employee and OPSEU member, with copies of the Topical/Job Mart, or there [sic] substitutes or replacements [these may subsequently be referred to as the “Job Ads”], delivered to the Grievor’s home promptly upon issue, commencing from the date of the execution of the settlement. This will allow the Grievor, Kam Sidhu, the opportunity to apply for any Article 6 or 8 positions for which she may choose to apply.

2In 2007 the first allegations of breach of settlement came before this Board. The parties were able to resolve the matter and, among other things, agreed to add the following sentence to the paragraph of the settlement just reproduced:

The Employer agrees to provide hard copies of the above by Courier to the Grievor’s home.

3The Board issued an award, dated October 17, 2007, in which it directed the parties to comply with the terms of their agreement.

4Less than a year later, the matter came back on before the Board. The union alleged that there had been multiple occasions in a period in excess of two years upon which delivery of the documents in question had not been effected. The Board rejected the majority of such claims but found that on up to four instances (two of which appeared to relate to the very first implementation of courier delivery; the other two may have related to a hiatus period over the Christmas holidays) the employer had been remiss in its delivery obligations. Included in the relief sought by the union was a claim for $70,000 in damages. The Board rejected all remedial claims save the request for a declaration. As will be seen, in my view, much of the Board’s reasoning in declining all but declaratory relief (see para. 33-39 of the decision dated February 23, 2011 in this matter) applies equally to the case at hand.

5In 2012 and 2013 further similar claims were advanced. Ultimately, in a decision which reflected the agreement of the parties, the Board issued another declaration.

6In the claim now before me, the parties once again appeared before the Board in August 2018, the union claiming further violations of the employer’s delivery obligations. At that first day of hearing, the parties made some procedural agreements:

• The parties would prepare a joint statement of agreed facts.

• The union would prepare a “stress” statement in which the grievor would outline the impact of the employer’s alleged breaches on her.

• The employer would produce copies of the job postings which were the subject of the non-delivery allegations so that the grievor might advise as to which, if any, of the jobs she might have applied for.

• The parties would seek instructions regarding a possible agreement to apply the procedure set out in Article 22.16 of the collective agreement to these proceedings.

7When the hearing reconvened, the parties filed an agreed statement of fact and the union filed the grievor’s stress statement. They also advised that they had agreed to apply the provisions of Article 22.16 to the instant proceedings. The employer advised that it had produced the job postings to the union. However, the union advised that the grievor had declined to review those postings to identify any job(s) for which she might have applied, asserting that any request that she do so was “ludicrous”.

8As this matter was conducted as if it was governed by Article 22.16, this is an expedited process, one in which the parties, in the interests of expedition, forego some aspects of a full formal hearing and are content to be bound by the results of a decision which may provide something less than the full and complete reasons the parties otherwise tend to expect. Of course, while this decision will have no binding precedential value, its terms will be binding on the parties with respect to this case.

9I now set out the parties’ agreed facts which review the history of this matter and go on to detail the specific facts of the dispute now before me. I have not reproduced the documents referred to in those facts. Similarly, I have not found it necessary to set out the grievor’s stress statement (some portions of which will later be reproduced).

AGREED STATEMENT OF FACTS

Background

1. Kam Sidhu (“the Grievor”) is an Administration & Fleet Management Clerk, classified as a 05OAD, with the Ontario Public Service (“OPS”), who assigned for the Ontario Clean Water Agency (the “Employer”).

2. The Grievor is represented by the Ontario Public Service Employees Union (the “Union”).

3. The Grievor has approximately 29 years of service. She has a continuous service date of on or around October 16, 1989.

4. The Grievor applied for and was granted on Long-Term Income Protection (“LTIP”). She has been on LTIP since January 4, 2000.

5. The Grievor’s last day in the workplace was July 3, 1997. She has not returned to work since that date.

The Memorandum of Settlement

6. The Grievor and another employee both filed a number of grievances against the Employer. These grievances were resolved on a without prejudice and precedent basis on March 24, 2003 (“the 2003 MOS”). The 2003 MOS included a clause at number 5 that pertained specifically to the Grievor and not to the other employee who filed similar grievances.

7. On October 5, 2007, the Grievor, the Union and the Crown in Right of Ontario reached a memorandum of settlement (“the 2007 MOS”). The 2007 MOS was agreed to following allegations that the Employer had breached the 2003 MOS agreed to by the Parties.

Tab 1 of Employer’s Book of Documents and Authorities – Memorandum of Settlement, dated October 5, 2007.

8. Both Settlements included clauses addressing the Employer sending the Grievor copies of OPS job advertisements to allow the Grievor to apply for any Article 6 or 8 positions that were posted.

Tab 1 of Employer’s Book of Documents and Authorities – Memorandum of Settlement, dated October 5, 2007.

9. Specifically, paragraph 1 of the October 5, 2007 MOS states:

The Employer agrees to provide the Grievor, Kam Sidhu, their employee and OPSEU member, with copies of the Topical/Job Mart, or there [sic] substitutes or replacements, delivered to the Grievor’s home promptly upon issue, commencing from the date of the execution of the settlement. This will allow the Grievor, Kam Sidhu, the opportunity to apply for any Article 6 or 8 positions for which she may choose to apply. The Employer agrees to provide hard copies of the above by courier to the Grievor’s home.

Tab 1 of Employer’s Book of Documents and Authorities – Memorandum of Settlement, dated October 5, 2007.

10. This paragraph was issued as an order of the GSB on October 17, 2007, by Vice-Chair Herlich. Vice-Chair Herlich wrote:

An issue arose in this matter with respect to an alleged violation of the terms of a previous settlement.

On the day scheduled for hearing the parties executed a further Memorandum of Settlement which included, inter alia, the following paragraph:

The Employer agrees to provide the Grievor, Kam Sidhu, their employee and OPSEU member, with copies of the Topical/Job Mart, or there [sic] substitutes or replacements, delivered to the Grievor’s home promptly upon issue, commencing from the date of the execution of the settlement. This will allow the Grievor, Kam Sidhu, the opportunity to apply for any Article 6 or 8 positions for which she may choose to apply. The Employer agrees to provide hard copies of the above by courier to the Grievor’s home.

Having regard to the agreement of the parties, I hereby direct them to comply with the terms of the paragraph set out above.

OPSEU (Sidhu) and The Crown in Right of Ontario (Ministry of Agriculture, Food and Rural Affairs), GSB No. 0232/94 (October 17, 2007) (Herlich).

The Previous GSB Decisions

11. The GSB has subsequently issued two decisions regarding alleged breaches of the 2007 MOS.

12. On February 11, 2011, Vice-Chair Herlich found that the Employer had breached the 2007 MOS and issued a decision to that effect. He concluded, at para. 40:

40The grievance is hereby allowed. I have declared that the employer has breached the terms of the settlement/Board Order. No other remedy will issue.

Tab 6 of Employer’s Book of Documents and Authorities – OPSEU (Sidhu) and The Crown in Right of Ontario (Ministry of Agriculture, Food and Rural Affairs), GSB No. 0232/94 (February 23, 2011) (Herlich).

13. On December 2, 2013, Vice-Chair Herlich determined that the Employer had breached the terms of the settlement and issued a decision to that effect. He found at para. 6:

6Having regard to the positions of the parties, I hereby declare that the employer has breached the terms of the settlement between the parties. No other relief will flow. The hearing scheduled for December 3, 2013 is cancelled.

Tab 7 of Employer’s Book of Documents and Authorities – OPSEU (Sidhu) and The Crown in Right of Ontario (Ministry of Agriculture, Food and Rural Affairs), GSB No. 0232/94 (December 2, 2013) (Herlich).

Reconvening the Matter Before the GSB

14. The Union wrote to the Employer on December 21, 2017, alleging a further breach of the 2007 MOS. The Union informed the Employer that the Grievor alleged the MOS had been breached for the week of September 18-22, 2017, and stated the Union would write to the GSB to request another date.

15. At a later date, the Union also informed the Employer it was alleging that the Employer breached the settlement for the weeks of May 18-22, 2018 and July 9-13, 2018.

The Circumstances Giving Rise to the Recent Allegation of Breach of Settlement

16. On September 22, 2017, the Employer sent the OPS job advertisements posted from September 18 – 22, 2017 to the Grievor’s home address via Purolator Courier.

Tab 2 of Joint Book of Documents – Email from Purolator to Marivel Mendiola on September 23, 2017 at 6:06 AM and Tracking Details, Job Ads – September 22, 2017.

17. On October 12, 2017, Purolator returned this package to the Employer. The Employer did not attempt to deliver the package to the Grievor a second time.

18. On May 18, 2018, the Employer sent the OPS job advertisements posted from May 14-18, 2018 to the Grievor’s home address via Purolator Courier. The Employer made no attempt to contact the Grievor or Union.

Tab 3 of Joint Book of Documents – Email from Purolator to Marivel Mendiola on May 19, 2018 at 6:35 AM and Tracking Details, Job Ads – May 18, 2018.

19. On May 30, 2018, Purolator returned this package to the Employer. The Employer did not attempt to deliver the package to the Grievor a second time.

20. On July 13, 2018, the Employer sent the OPS job advertisements posted from July 9-13, 2018 to the Grievor’s home address via Purolator Courier. The Employer made no attempt to contact the Grievor or Union.

Tab 4 of Joint Book of Documents – Email from Purolator to Marivel Mendiola on July 13, 2018 at 6:35 AM and Tracking Details, Job Ads – July 13, 2018.

21. On July 24, 2018, Purolator returned this package to the Employer. The Employer did not attempt to deliver the package to the Grievor a second time. The Employer made no attempt to contact the Grievor or Union.

22. The Grievor’s evidence would be that she did not receive notice from Purolator for delivery attempts for 2 packages. She did receive a notice slip from Purolator for the third package and attended at the depot to retrieve the package. She was advised that the package could not be located.

10Thus, there were three occasions upon which the grievor did not receive the documents in question. In each case, the courier attended at her home but was unable to place the documents in the grievor’s hands, as there was no response at the door. It appears to me that in each case the courier (as it has done on numerous previous occasions) did or would have left a notice inviting the recipient grievor to attend at the courier depot, within a prescribed time, to claim the package. The grievor claims she received only one such notice, but that when she attended at the depot was told the package could not be located. We were not advised as to when, in relation to the prescribed time, the grievor attended at the depot. And, of course, the grievor’s claim that she did not receive the other two notices does not entirely negate or necessarily even contradict the courier records which suggest notices were left.

11The employer relied on a number of cases, including two which articulate the proposition that once a party’s delivery obligations are completed any risk of non-receipt may fall to the intended recipient. In Professional Masonry Service 2000 CanLii 12749 (ONLRB), the OLRB distinguished between delivery and service and concluded that an item placed in a rural style mailbox at the recipient’s business address had been delivered, despite the fact that it did not find its way into the recipient’s hands in a timely fashion.

12Similarly, in Glasbau Hahn GmB + Co. KG, 2006 CanLii 10959 (ONLRB), the Board found that where the sender provided evidence that it had successfully transmitted the documents in question by fax to the proper telephone number, delivery had been effected. Once that obligation had been met, any risk associated with the actual in-hand receipt of the documents was to be borne by the receiver.

13The union before me argued that the instant case was different. Unlike the two cases above, in our facts the employer relatively quickly became aware the documents (having been returned to it by the courier) did not make their way into the grievor’s hands. This, submitted counsel, equated to altering the facts in the Glasbau case above such that the fax transmission report clearly indicated that the transmission had been unsuccessful. In those circumstances the union contended that the employer’s failure to take any further steps to remedy the non-receipt would have been unacceptable, as it should be in the present case.

14In my view, delivery was properly effected in all three of the instances here under consideration. First, it must be recalled that the parties’ agreement, in both its original and amended the forms, requires nothing more than delivery to the grievor’s home; it does not require personal service and is not a guarantee that the properly delivered documents will actually make their way into the grievor’s hands. If the grievor is not available to accept delivery and fails to attend at the courier depot within the prescribed time, she bears the risk of not receiving the Job Ads. It must also be recalled that these three deliveries are not singular isolated events. The grievor has been receiving these courier deliveries every single week for almost a dozen years now, some 600 separate deliveries.

15There may be some moral force to the union’s assertion that the employer ought to have done something when it learned that the items had been returned to it. But the more pressing and apposite question is why, after what may have been some 100 consecutive successful weekly deliveries since the last decision of the Board in this matter, usually on the same day each week, the alleged faulty delivery on September 25, 2017 was not brought to the employer’s attention until December 21, 2017. True, the employer took no further steps upon being advised that the package had not been received. But the grievor, who did not advise the employer at the time that, after some 100 successful weekly deliveries there was a problem with the 101^st, allowed matters to unfold in a fashion that the employer was not even advised of any issue for some three further months. In any moral contest between the conduct of the employer and the grievor, I have little hesitation that the employer would prevail. But my decision is not based on the outcome of any contest. In my view, the employer fulfilled its delivery obligations. It was (and is) obliged to provide delivery of the Job Ads by courier to the grievor’s home. It did so in precisely the same manner it had on so many previous weekly occasions. I am not persuaded, particularly where there was no contemporaneous inquiry from the grievor, that it was required, notwithstanding the information from the courier, to do anything further, let alone to effect a second delivery.

16Having regard to the foregoing, the claim that there has been a breach of the parties’ settlement must be, and hereby is dismissed.

17This, however, is not the end of the matter. The employer asks that I direct that the grievor not be permitted to advance any further allegations of breach of the settlement without first obtaining leave of the Board. Before addressing that request, I take a brief detour.

18I cannot help but observe that even if I am mistaken in my finding that no breach of the settlement by the employer has been established, the result in the case, certainly the practical result, would be little, if at all different.

19First, I might well have found that the breach was de minimus, involving but three instances (out of hundreds) where there was any complaint to be made about the weekly delivery of the documents.

20Second, I might well have found that there was simply no labour relations purpose to be achieved in entertaining the claim. The purpose of the settlement was made clear in its terms. It is not simply, as the grievor seems to suggest in her written statement, a free-standing and permanent employer obligation to effect weekly courier deliveries of job ads. The obligation, in its own terms, is for the specific purpose of “… allow[ing] the grievor … to apply for any … positions for which she may choose to apply”. The employer agreed, at the first day of hearing, to provide copies of the job ads said not to have been delivered so that the grievor could review them in advance of the next day of hearing to determine which, if any, of the jobs she might have applied for. The grievor refused to do so. In her statement, she observed:

In regard to the identification of any positions that I may have applied for within the missing documentation that the Employer promised to provide but did not. This in my view this is a futile exercise that you folks want me to perform and I am not doing it. It is ludicrous to request that I perform this exercise as I have been out of the workforce for so long that I need to be given training for any position that I am to be placed in.

21While perhaps not startling, this is a significant admission on the grievor’s part. First, it confirms that there were no jobs she was likely to have applied for in the instant case. Further, it suggests that neither are there any future jobs she is likely to apply for. It may even suggest that the grievor has entirely ceased reviewing the very job ads she insists the employer continue to deliver weekly, as the employer has, subject to a limited number of exceptions, been doing for more than 15 years. On the other hand, these acknowledgements may be less than surprising, given that the grievor has been on LTIP (i.e. totally disabled) for almost 20 years. But most importantly, it begs the question: beyond simply safeguarding the sanctity of settlements, what possible labour relations purpose is to be achieved by this Board monitoring and requiring strict and complete adherence to the terms of the parties’ settlement?

22The grievor claims the employer’s breach has caused her stress and emotional damage. A damage award of $70,000 was sought. This claim is entirely unsupported. The prospect of the non-delivery of job ads which the grievor refuses to review causing her stress is counter-intuitive. There is no medical evidence to support such a dubious claim. Indeed, the grievor’s written statement focuses not on any stress occasioned by the alleged breach of the settlement, but rather returns to the stress which was allegedly occasioned some 20 plus years ago when the grievance was first filed. The grievor seems eager to relitigate a matter which she views as having had only a “partial resolution” and seeks, as well as the damages, that she be placed in her preferred position. This latter demand was the subject matter of the grievance which was fully settled in 2003. The stress the grievor points to is, in large measure, the stress claimed to have been suffered as a result of the actions which gave rise to the grievance, settled in 2003. It is simply not relevant to any assessment of current damages, even if the employer has breached its settlement obligations.

23The grievor is totally disabled. There was no suggestion that there is any reasonable prospect of her returning to work imminently or at any time in the foreseeable future. Her claim for damages in this instance is spurious. She has not even bothered to review the job ads said to have not been delivered. She may well have ceased to review any of the job ads that are being delivered to her regularly. In this context, and given the express purpose of the parties’ agreement, it is difficult to articulate what specific labour relations purpose would be served by entertaining this or similar claims where the employer has otherwise overwhelmingly complied with its obligations.

24Thus, it appears to me that even if I had been persuaded that the employer breached its obligations in the instant case, it is difficult to see how anything other or more than a bare declaration, if that, would be the result.

25This brings me, finally, to the employer’s request that the grievor henceforward be precluded from bringing any similar claimed breaches of the settlement to the Board without first obtaining leave.

26The union asserted that the only basis upon which such a direction should issue is if the grievor is found to be a vexatious litigant. The employer conceded that there was no basis for such a finding but asserted that while such a finding might be sufficient, it was not a necessary one. The employer’s concession is a reasonable one in a circumstance where the four occasions upon which the issue has been brought to the Board have resulted in a settlement, two findings of employer breaches and but a single instance (the present one) where the claim has been dismissed.

27Even assuming that a “vexatious litigant” finding is not a necessary condition for the order sought, I am not, in the current circumstances, inclined to place limitations on the grievor’s right to return to the Board in the manner urged by the employer, at least not yet.

28However, and in view of some of the concerns I have enumerated regarding labour relations purpose, I do direct the following in respect of any future similar claims of breach of settlement advanced by the grievor:

A. Should there be any future similar allegations of breach of settlement (i.e. non-delivery of Job Ads) brought to this Board, they will be dealt with, procedurally, in a fashion akin to that prescribed under Article 22.16 of the collective agreement.

B. Should any such similar claim be advanced, the union and the grievor are hereby directed to, not later than 60 days prior to any hearing date, file full and complete particulars with the Board, with a copy to the employer, including, but not necessarily limited to, the following:

i. Full details of the alleged breach

ii. A concise summary of the evidence that would be tendered by its witness(es), should such testimony be permitted

iii. Copies of all documents upon which it intends to rely

iv. Complete details of when and how the alleged breach came to the attention of the grievor and what steps she took when to have the matter brought to the attention of the employer.

C. A pre-hearing conference will be held to manage the scheduled litigation. It will be scheduled at least 30 days in advance of any hearing date and may be held at the Board with counsel only or by way of teleconference.

29Having regard to all of the foregoing I am not persuaded that the employer has violated the terms of the parties’ agreement and the claim of the union and the grievor to the contrary is hereby dismissed.

30I remain seized with respect to the implementation of this and prior awards and settlements of the parties in this matter.