GSB#2015-3089

UNION#2016-5112-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Alleyne)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Stephen Raymond

Arbitrator

FOR THE UNION

Rebecca Jones Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

April 29, 2022

Decision

Introduction

1Jodhi Alleyne (“Alleyne”) has been a correctional officer since 2008. She is a single mother. This decision addresses the interplay of two grievances filed by her. The first was filed on April 2, 2015 (“the 2015 grievance”). That grievance was settled on June 26, 2019 and Alleyne provided the Employer with a release. The grievance before me was filed on January 17, 2016. The Employer says that I should restrict Alleyne from relying on the facts of the 2015 grievance in respect of this grievance. It states that those facts were settled and further that a release was provided in respect of any other facts that could have formed part of the 2015 grievance.

2On November 17, 2020, the Union provided the Employer with particulars of the grievance. The Employer brings a preliminary motion to strike the paragraphs of the particulars that pre-date the 2015 grievance.

3The question I must answer is whether Alleyne is prevented from relying on the facts that occurred before the filing of the 2015 grievance in this grievance because she settled the 2015 grievance and signed a release. I conclude that some of the particulars should be struck and that others may remain. The 2015 grievance and this grievance both relate to the accommodation of Alleyne’s family status. The particulars up to the date of the 2015 grievance in respect of the accommodation of Alleyne’s family status should be struck and may not be relied upon in the hearing of this matter. There are particulars that the Employer sought to strike out that are unrelated to family accommodation and/or post-date April 2, 2015 that should not be struck and may be relied upon in the hearing of this matter.

Issues

4In addressing the motion, I consider the following questions:

1. What was the 2015 grievance about?

2. What claims were resolved by the settlement of the 2015 grievance?

3. What is the impact of the settlement of the 2015 grievance on the Union particulars of this grievance?

Issue 1 – What was the 2015 grievance about?

5The parties disagree about what the 2015 grievance was about. The Union states that it is simply about lost overtime opportunities. The Employer says it is also about a failure to accommodate Alleyne’s family status. The 2015 grievance, again dated April 2, 2015, was handwritten. The parties agreed on a transcription as follows:

“I was given an accommodation with specified hrs of 18-0600hrs. I never agreed to said accm.as it did not fit my family needs. In receiving this accommodation I was restricted to these hrs only therefore inabling me the opportunity to work overtime as my name was removed from all shifts on HPRO. In HPRO it states that messages were received by me however no one called me from Mar 19 onwards due to the accommodation. I wish to be reimbursed for the days that I was neglected to be offered.”

6The Union asks that I determine that the 2015 grievance was about a very narrow event, the loss of an opportunity to work overtime. It says that a plain reading of the grievance should lead me to that conclusion. It relies, as well, on the settlement of that grievance. The only thing that Alleyne received was eight hours of overtime pay. The accommodation of her family status was not addressed in the settlement.

7The Employer asks that I give a broad reading to the 2015 grievance. It notes that the words family needs and accommodation are specifically mentioned in the 2015 grievance.

8In reading the 2015 grievance, it appears that Alleyne is complaining about two distinct things. First, she is being accommodated due to her family status in a manner that is not agreeable to her. Second, the effect of the accommodation is that she is not being offered shifts that she would be able to work. I find that the grievance is about both overtime and family status accommodation.

Issue 2 – What claims were resolved by the settlement of the 2015 grievance?

9The settlement of the 2015 grievance occurred on June 26, 2019. The settlement provided Alleyne with an overtime payment in exchange for the withdrawal of the 2015 grievance. It settles any claim for missed overtime opportunities up to April 2, 2015. The Union agrees with that and does not question the importance of the “sanctity of settlements”. Rather, it asks that I permit it to set out the facts prior to April 2, 2015 in support of this grievance. Those facts, it asserts, help to illustrate the context and pattern of discriminatory behaviour in relation to the accommodation of her family status.

10The Board has a general rule that it will permit a grievor to rely on events for up to three years prior to the date of grievance in support of an assertion of a violation of, among other things, human rights. In Ontario Public Service Employees’ Union (Cross et al) v Ontario (Community Safety and Correctional Services) 2015 CanLII 60421 (ONGSB), (Misra), Arbitrator Misra stated at paragraph 57:

In developing the three-year guideline, the Board has recognized that there may be a course of conduct that is not immediately recognized as harassment and/or discrimination, and that it may take some time before otherwise apparently innocent or innocuous actions may be seen as part of a course of conduct.

11Following the general rule, therefore, a grievance, as here, dated January 17, 2016 would permit Alleyne to set out the sequence of events that occurred back to January, 2013. But for the settlement of the 2015 grievance, I would permit particulars back to January 2013 and none of the particulars provided by the Union would be struck.

12Because the Union and Alleyne settled the 2015 grievance, I cannot simply follow the general rule. The 2015 grievance was settled after filing the current grievance. This Board has held that “(t)he sanctity of settlements reached between the parties is paramount. The parties must be held to settlement of grievances except in very exceptional circumstances. This is so with or without negotiated release language”: Ontario Public Service Employees’ Union (Greco) v. Ontario (Ministry of Transportation), 2015 CanLII 39334 (ONGSB) (Dissanayake); see also - Ontario Public Service Employees’ Union (Fletcher) v. Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 30731 (ON GSB) (Leighton); Ontario Public Service Employees’ Union (Hawkes) v. Ontario (Ministry of Community Safety and Correctional Services), 2009 CanLII 43624 (ONGSB) (Leighton). I did not have put in front of me any facts that would lead me to conclude that the circumstances in this grievance are any more likely to create “very exceptional circumstances” than in the cases I have referred to above.

13The Board has decided that where there is a settlement and withdrawal of the prior grievance, that it will not permit a party to litigate the facts that have been settled.

14In this matter, the settlement went further and provided a comprehensive release. It states, in part:

The Grievor and Union agree to release and forever discharge the Employer, its servants, agents, directors or and from all actions, differences, causes of actions, claims and demands of every nature and kind arising out of or related to the above-noted grievance which she has or may have against the Employer, including but not limited to all claims arising under the OPSEU Collective Agreement, the Public Service of Ontario Act, 2006, the Human Rights Code, the Occupational Health and Safety Act, the Employment Standards Act, 2000 and at common law.

15I have found that the settlement of the 2015 grievance would preclude Alleyne from relying on the facts relating to family status that were present in support of the 2015 grievance. Even if the Union were correct and the 2015 grievance was not about family status accommodation and only about a loss of overtime opportunities, I would still have to consider whether the existence of the release would mean that Alleyne was prevented from raising those facts. To me, the release as worded would preclude Alleyne from relying on facts about family status accommodation up to the date of the 2015 grievance as those facts are ones that are “arising out of or related to” the 2015 grievance.

Issue 3 – What is the impact of the settlement on the particulars?

16A straightforward approach to this matter is to divide the particulars into those that occur after April 2, 2015 and those that occur prior. Those that occur after may remain. For those that occur prior, they should be subdivided into two categories. The first is those that relate to family status accommodation. Those are settled by the settlement of the 2015 grievance and may not be relied upon. The second is those that are not about family status accommodation.

17There is a series of paragraphs in the particulars that relate to communications between Alleyne and the Employer about training. These are not matters that were settled. They were not the subject matter of the prior settlement. There is no indication on the face of the prior grievance that the grievance was in any way about her training.

18The question of whether Alleyne’s claims about training are released turns on whether in the words of the release those claims “arise out of or are related to the above-noted grievance”. In my view, they are not either arising out of the prior grievance nor do I see a connection in which it may be determined that they are related to the prior grievance. It is for that reason that the paragraphs that relate to training are not struck.

19As to the particulars themselves, my disposition is as follows:

a. Paragraph 4 is a statement that relates to her family status and is struck;

b. Paragraph 5 refers to an accommodation meeting prior to April 2, 2015 and is struck;

c. Paragraphs 6, 7, 10, 15, 17 refer to training and are not struck:

d. Paragraphs 8, 9 and 11 to 14, 16 appear to be the exact events that led to the filing of the April 2, 2015 grievance and are struck:

e. Paragraph 18 to 22 are events that occurred after April 2, 2015 and are not struck.