GSB# 2020-1825

UNION# 2020-0533-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Barai)

Union

• and -

The Crown in Right of Ontario (Ministry of Government and Consumer Services)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING DATE

May 18, 2022

Decision

1A grievance dated September 11, 2021 filed by Ms. Sejal Barai came before the Board on March 9, 2022 for mediation-arbitration pursuant to article 22.16 of the collective agreement. The grievance alleged a number of violations of the collective agreement and applicable legislation, including harassment, failure to accommodate, poisoned work environment, STSP and overtime. During mediation the focus was on a settlement based on a monetary payment to the grievor. Several rounds of exchange offers on the quantum failed to produce an agreement. The employer gave notice that it would be making a preliminary motion that the grievance should be dismissed as untimely. September 13, 2022, was fixed to argue that motion.

2However, the parties requested that the Board convene earlier to deal with another issue that had arisen. When the Board convened on May 18, 2022, the employer took the position that following the initial day of hearing, the parties had engaged in discussions and settled the grievance. The union disagreed.

3In support of their respective positions, the parties submitted documentary evidence and legal authorities. The evidence essentially consisted of emails exchanged between the parties. Chronologically they disclose the following:

• On March 9, 2022 employer counsel, Ms. Cohen wrote to Union Representative Mr. Chi. Confirming the "mutual understanding reached today" that the employer's final offer is a payment of $5,000.00 characterized as damages; that the grievor had until March 23, 2022 to accept; and if not accepted the timeliness motion will proceed on September 13, 2022 as scheduled.

• On March 23, 2022, Mr. Chi wrote to Ms. Cohen confirming that the grievor accepted the employer's offer.

• The same day Ms. Cohen wrote "That's great. We have a deal in principle." She attached draft Minutes of Settlement ("MOS") and asked that it be executed by the union and the grievor if the language is acceptable, to be signed off by the employer.

• On March 25, 2022, Mr. Chi wrote back with some "minor changes" to one of the paragraphs. He wrote that he was meeting the grievor that afternoon to review the MOS, and asked Ms. Cohen whether the employer agrees to the changes.

• Within a short time, Ms. Cohen replied that the employer accepts the changes the union had made.

• Later the same day, Mr. Chi wrote to Ms. Cohen, that he had reviewed the draft MOS with the grievor and that the grievor had advised that she would not sign the MOS because she objected to paragraph 3 of the MOS.

4After further discussions at the hearing on May 18, 2022, the employer agreed to remove paragraph 3 from the MOS which the grievor had objected to. I instructed Ms. Cohen to present to the union an amended MOS reflecting the deletion of paragraph 3.

5Subsequently, Mr. Chi advised the Board that the grievor was not at the time refusing to sign the amended MOS, but was asking for time to enable her to "consult" before signing it. The employer strongly opposed this request and took the position that the grievance is settled because the parties had agreed to all the terms as reflected in the MOS as amended. Both parties were entrenched in their respective positions, and I received submissions.

6The union submitted that the grievor is not legally trained and she was only seeking an opportunity to ensure that she fully understands the implications of the terms of the MOS. When the initial draft MOS was presented, she had consulted a lawyer and was advised that she should not agree to paragraph 3, which is generally referred to as a "release clause". On that legal advice the grievor insisted on the removal of paragraph 3. Now she wants to have her lawyer review the final version of the MOS before signing it.

7Employer counsel submitted that the draft presented back in March included all of the terms in the present version plus paragraph 3. The only provision objected to was paragraph 3. Now that paragraph has been removed. Therefore, the only point of disagreement standing in the way of settlement is gone and there was agreement to all the terms in the MOS as amended. She asked me to declare to that effect.

8I agree with the employer. This proceeding takes place before the Board in a regime of collective bargaining, where the union is the sole and exclusive bargaining agent for the employees in the bargaining unit. In that capacity, the union acts on behalf of grievors in these proceedings. In this case, the union disagreed with the employer that the grievance had been settled through the email exchanges. It presented the grievor's objection to one of the terms of the draft MOS, and the employer responded by deleting that paragraph.

9The only point of disagreement was paragraph 3. Once that was deleted there was consensus ad idem on all of the remaining terms. At that point the grievance was settled.

10I declare that the instant grievance was settled even though not signed off formally. The terms of the MOS therefore are binding on the employer, union and the grievor, and are enforceable in accordance with the law.

11I remain seized with jurisdiction in the event of disagreement in implementing the terms of the MOS. In the circumstances the employer" timeliness motion is moot. The hearing scheduled for September 13, 2022 is cancelled.