GSB#2018-2815; 2019-2336; 2020-0857

UNION#18-311; 19-191; 20-14

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Canadian Union of Public Employees - Local 1750 (Simpson)

Union

• and -

The Crown in Right of Ontario (Workplace Safety and Insurance Board)

Employer

BEFORE

Randi H. Abramsky

Arbitrator

FOR THE UNION

Jason DeFraga Canadian Union of Public Employees CUPE National Representative

FOR THE EMPLOYER

Brandin O'Connor Shields O’Donnell MacKillop LLP Counsel

HEARING

October 16, 2020 and May 20, 2021

Decision

1At issue is whether the parties entered into a binding settlement of the three grievances filed by the Grievor, Chan Simpson, at the mediation held via teleconference on October 16, 2020. It is the position of both the Employer and the Union that a settlement agreement does exist, but the Grievor disagrees.

2The parties proceeded through an Agreed Statement of Facts, and documents, which was supplemented by a statement provided by Ms. Simpson at the hearing on May 20, 2021.

3The Agreed Statement of Facts is as follows:

1. The Employer and Union are parties to the Collective Agreement for all bargaining unit employees. (TAB 1) The Grievor is a former employee of the Employer.

2. The Grievor was given a one-day suspension letter on August 21, 2018. (TAB 2)

3. The Union filed grievance 18-311 regarding this discipline on August 27, 2018. (TAB 3)

4. The Grievor was given a three-day suspension letter on September 17, 2019. (TAB 4)

5. The Union filed grievance 19-191 regarding this discipline on September 24, 2019. (TAB 5)

6. The Grievor was given a five-day suspension letter on February 13, 2020. (TAB 6)

7. The Union filed grievance 20-14 regarding this discipline on February 21, 2020. (TAB 7)

8. The Grievor retired from the Employer on or about April 1, 2020.

9. The Parties agreed to refer all three (3) grievances jointly to the Grievance Settlement Board. (TAB 8)

10. The grievances were submitted to Vice-Chair Abramsky on October 16th, 2020.

11. The Parties and the Grievor began the day engaged in mediation, which resulted in a mediated settlement at approximately 2:20 on October 16th, 2020. The Parties adjourned shortly thereafter. Confidential Minutes of Settlement and a Release appear at TAB 9.

12. The Union and Employer signed the confidential Minutes of Settlement on October 16th, 2020 at 2:57 pm and 3:27 pm, respectively. (TAB 10).

13. The Parties – both Employer and Union – take the position that an enforceable settlement has been reached as between them. Further, the Grievor verbally agreed to the terms of the settlement, including the Release, in the presence of the Union. The Employer is without direct knowledge of the Grievor’s verbal agreement, but proceeded on the understanding that the Grievor did agree and the Employer does not assert otherwise.

14. At 3:39pm on October the 16th, after verbally agreeing to the proposed settlement during mediation and after the Parties had adjourned for the day, the Grievor informed the Union that she was “not sure [she] will be signing them today” as she was “still looking into [them]”.(TAB 11).

15. On March 12th, 2020 the Union received a letter from the Grievor claiming she is “not in agreeance” with the settlement and that she would like the “three grievances returned to the Grievance Settlement Board…”. (TAB 12) The Parties do not agree that the statements made in the letter are true and it is referenced only as evidence of the Grievor’s position.

16. The Union confirmed with the Employer its view that settlement had been reached and the Employer agreed. The Employer complied with the terms of the confidential Minutes of Settlement. (Tab 13)

4At the hearing on May 20, 2021, the Grievor acknowledged that she “begrudgingly agreed” to the terms of the settlement but feels that she did so under pressure. She stated that she felt very stressed and anxious, particularly because she had never participated in a videoconference hearing before, or a virtual meeting, and was unfamiliar with it. She was also stressed because her Local Union representative – who knew her situation and her case - was not present with her during the mediation. She stated that she felt pressured and compelled to agree since she “wanted the stress to end.” She stated that she had no opportunity to read the draft agreement alone and in private – instead, it was read to her. In her view, the terms of the settlement were insufficient and while she did want the process to be over, she did not want to allow the Employer to “get away” with its treatment of her, which she feels the settlement permits.

Reasons for Decision

5The issue is whether the parties reached a binding settlement on October 16, 2020, at the videoconference mediation. For the reasons that follow, I am persuaded that they did, and that Ms. Simpson agreed to the terms at the time.

6As the Agreed Statement of Facts indicate, the three grievances submitted to arbitration were mediated on October 16, 2020, and the parties came to an agreement on all of the terms. At the time, the Grievor consented to the terms, albeit “begrudgingly.” The Employer then created a Memorandum of Settlement, based on those terms, which both the Union and the Employer signed on October 16, 2020. Due to the remote nature of the hearing, it was not possible for the Grievor to sign the document at that time, but there was no question that a settlement had been reached. Subsequently, after the mediation was adjourned, the Grievor advised the Union that she was “not sure [she] will be signing them today” as she was “still looking into [them].” On October 26, 2020, the Union wrote to the Employer, stating as follows:

Chan has indicated that she does not wish to sign the MOS, but given that the local has carriage over the grievance, it was agreed to by her on that date and we feel it is fully executed with or without her signature. If the employer is not wanting to proceed with the settlement without the signature please let [us] know.

7The Employer responded the same day:

“The employer agrees to process the MOS as signed by the parties.”

8On November 12, 2020, the Employer sent a cheque to the Grievor in the amount agreed to in the settlement, which she did not cash. On March 12, 2021, the Grievor sent the Employer’s cheque to the Union, stating that it was “issued to me in error by the employer”, and informed the Union that she was not in agreement with the settlement for a variety of reasons.

9While the Grievor acknowledges that she reluctantly agreed to the terms of the settlement, she felt “pressured” and “compelled” to agree due to the stress of the situation, and her unfamiliarity with videoconferencing. She notes that she did not have an opportunity to review the written document alone, so as to consider its terms. The Union, in its submissions, stated that it was not apparent to the Union, during the mediation, that the Grievor felt this way. It reviewed the terms of the Memorandum of Settlement with her, several times, and she “begrudgingly accepted.”

10This is a very unfortunate situation. The Grievor is clearly unhappy with the terms of the settlement. The case law is clear, however, that the perceived fairness or reasonableness of the terms of a settlement reached by the parties is not a basis to overturn a settlement. In Re OPSEU (Corbiere) and Ministry of Community & Social Services, GSB No. 2011-3255, a settlement that provided the grievor with a ten-month employment contract, became useless to the grievor when he was unable to obtain a leave of absence for that period from his current employer. That fact became known after the agreement was reached, but before the agreement was signed by the union. The grievor’s unhappiness with the terms due to his inability to obtain a leave of absence, however, was not a basis to allow the union to resile from the agreement. The union could have, but did not, make the grievor’s obtaining a leave of absence, a condition of its agreement. As Arbitrator Dissanayake states at par. 12:

There is no legal basis to deny the employer its right to enforce the terms of a settlement on the basis of reasonableness or fairness of the consequences or the terms of settlement reached between the parties, just as much as the Board lacks the authority to relieve a party from obligations under a term of the collective agreement on the basis of what it views to be unreasonable or fair. That would run directly counter to the long recognized principle that the efficacy of settlements is a foundational and necessary part of the grievance and arbitration process under collective agreements, and must be upheld.

11In this case, it was only because the mediation took place by videoconferencing that the Minutes of Settlement were not signed by the Grievor on October 16, 2020. Had we been in an in-person mediation, there would have been no opportunity for the Grievor to have had a change of heart, as appears to have occurred in this case.

12I have no doubt that the Grievor was stressed during the mediation. That is not uncommon. Many grievors find the mediation and arbitration process to be stressful. Indeed, to avoid the stress of a hearing is one reason many grievors settle. But she did not voice any concerns about the videoconferencing format, or appear to have any difficulties with it. She did not voice that she felt undue pressure to agree to the terms of the settlement. She did not voice that she wanted time to review the written document, alone. That she was unhappy with it, and the Employer in general, was clear. But she did, reluctantly, agree to it. Again, that is not uncommon.

13The case law is also clear that a binding settlement may occur, without a signed, written agreement. As stated in an earlier decision between the parties, Re CUPE and WSIB, GSB No. 2012-0173 (R. Brown, 2015) at para. 16:

Where a complete oral agreement has been reached on all issues in dispute, there is an enforceable settlement, notwithstanding either party’s refusal to execute a written agreement embodying the agreed terms.

14In that case, the Board held at para. 18:

All that remained by mid-afternoon on the last day of mediation was to reduce the agreement to writing and sign the resulting document. Even though this process was not completed, there is a binding settlement. Neither party is at liberty to repudiate it because of second thoughts occurring after an oral agreement had been reached. Both sides must abide by the terms of the deal they negotiated.

15A similar situation occurred in Re Oakville Association for the Mentally Retarded and OPSEU, 1993 CarswellOnt 6594 (Samuels). In that case, the employer and the union representative reached an oral agreement, which the grievor approved. When the release was sent to the grievor, however, she refused to sign it, telling the union that “she no longer wanted to settle for various reasons.” The arbitrator held that the union “had the authority to bind the union and the grievor” and that the grievor had “agreed to the settlement.” Accordingly, the Board determined, at para. 13: “We find that the parties came to a final binding contract to settle their differences in this matter….”

16The same conclusion applies here. The Union and Employer reached a settlement in this matter, and the Grievor reluctantly agreed to it.

Conclusion:

17For all the reasons stated above, I conclude that the settlement agreement reached on October 16, 2020 is effective and binding on the parties.