GSB# 2021-2938; 2021-3065; 2021-3067; 2022-1901; 2022-2230

UNION# 2021-0533-0022; 2022-0533-0023; 2021-0533-0002; 2022-0533-0008;

2022-0533-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (D’Souza)

Union

• and -

The Crown in Right of Ontario (Ministry of Public and Business Service Delivery)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Robin Lostracco Ontario Public Service Employees Union Senior Grievance Officer

FOR THE EMPLOYER

Regina Wong Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 31, 2023

Decision

1The issue before me is whether the Employer, the Union and the Grievor entered into a binding settlement not only of the matters referenced in the style of clause but also any other outstanding grievances of the Grievor relating to the Pay and Benefits Operations Branch (“PBOB”, formerly known as Ontario Shared Services, or “OSS”) as of February 10, 2023. I heard from the Employer, the Union and the Grievor on his own behalf. The position of the Employer and the Union is that a binding settlement was concluded by an exchange of emails. The position of the Grievor is that he did not agree to settle all outstanding grievances related to PBOB as of February 10, 2023.

2The five grievances referenced in the style of cause (hereafter “the referred grievances”) make allegations of bullying, harassment, discrimination, micromanaging, reprisal, and denials of bereavement leave and special and compassionate leave. The last of the referred grievances is dated February 10, 2022. The Grievor filed another grievance on July 21, 2022 making further allegations of harassment and reprisal in relation to his employment at OSS.

3The five referred grievances came to me for hearing on September 27, 2022, along with three other grievances of the Grievor. The three other grievances were resolved on that date, but attempts to resolve the five referred grievances were unsuccessful. A further hearing date was scheduled for March 31, 2023.

4In the interim, the parties engaged in further settlement discussions, involving the exchange of settlement proposals by email. That exchange gave rise to the disputed settlement. The disputed settlement and the settlement proposals included a confidentiality provision. Accordingly, I set them out only to the extent necessary for the purposes of this decision.

5By email dated January 27, 2023, the representative for the Employer sent the representative for the Union the following offer:

1. An amount as general damages.

2. 5 vacation days only if/when the Grievor returns to OSS, and only if the return is before December 31, 2025.

3. Full release, resolve all outstanding grievances relating to OSS; resolve all allegations of harassment and discrimination up to the date of settlement.

4. Usual clauses including confidentiality, no admission of wrongdoing-liability, complete agreement, etc.

6By responding email dated February 10, 2023, the representative for the Union provided the Employer with the following counter-proposal:

1. An amount larger than the employer’s offer on January 27, 2023 as general damages;

2. No vacation days- the increase in monetary payment would be in lieu of paying out vacation days. The grievor would like me to note he has not taken any sick time since September 2022 and feels this proves his use of sick time, and vacation to top up the time was directly related to the harassment he experienced;

3. Agree, but part of the agreement to this is the requirement for a larger payout, as it is covering more than the original particulars advanced for the current grievances.

4. Agree subject to reviewing wording of “usual” clauses.

7By responding email dated February 10, 2023, the representative for the Employer stated:

We have an agreement in principle. I’ve attached the draft MOS.

8The draft MOS, i.e. Memorandum of Settlement, provided by the Employer specifically referred to the July 21, 2022 grievance as one of the grievances being withdrawn pursuant to the settlement. The Union representative states that this was the first that she was personally aware of the July 21, 2022 grievance. Notwithstanding, she states it was clear that the parties had agreed to resolve all of the Grievor’s outstanding grievances related to PBOB as of the date of the settlement, i.e. February 10, 2023.

9The Grievor objects to the inclusion of the reference to the July 21, 2022 grievance in the MOS. He states that he was only settling grievances up to February 10, 2022, i.e. up to the date of his last referred grievance, and that the MOS should be amended accordingly. The Grievor acknowledges that he reviewed the January 27, 2023 email from the Employer and in particular paragraph 7, which states: “Full release, resolve all outstanding grievances relating to OSS; resolve all allegations of harassment and discrimination up to the date of settlement”. He maintains, however, that he understood he was only settling the grievances which were before me on September 27, 2022. In his view, the settlement does not adequately compensate him for the harassment and discrimination that he experienced subsequent to February 10, 2023, which was the subject of the July 21, 2022 grievance.

10The Board’s caselaw is clear that an agreement in principle with respect to all substantive items constitutes an enforceable settlement: Ontario (Ministry of Children and Youth Services) and OPSEU (Coelho), 2013 CarswellOnt 14287 (GSB, Lynk) at para. 33; Canadian Union of Public Employees - Local 1750 (Simpson) v Ontario (Workplace Safety and Insurance Board), 2021 CanLII 71641 (ON GSB) (Abramsky); Ontario Public Service Employees Union (Corbiere) v Ontario (Community and Social Services), 2013 CanLII 57002 (ON GSB) (Dissanayake); and Ontario Public Service Employees Union (Holder-Regis) v Ontario (Attorney General), 2020 CanLII 97346 (ON GSB) (Anderson). See also George Brown College v Ontario Public Service Employees Union, Local 556, 2023 CanLII 64 (ON LA) (Flaherty). As I noted in Holder-Regis, a grievor is not a necessary party to a settlement of a grievance per se, but as a matter of practice generally is made a party for other reasons.

11On the facts before me, I can only conclude that by the exchange of emails the Employer, the Union and the Grievor arrived at an agreement in principle on all substantive items. With respect to whether that agreement included the Grievor’s July 21, 2022 grievance, I note the following.

12The January 27, 2023 offer from the Employer included the following paragraph:

7. Full release, resolve all outstanding grievances relating to OSS; resolve all allegations of harassment and discrimination up to the date of settlement.

The February 10, 2023 counter-proposal from the Union did not seek to amend that paragraph. Rather it stated:

7. Agree, but part of the agreement to this is the requirement for a larger payout, as it is covering more than the original particulars advanced for the current grievances.

13The Employer was entitled to assume the offer was being made on behalf of both the Union and the Grievor. By responding email dated February 10, 2023, the Employer agreed to the larger payout, and indeed the entirety of the Union’s counter-proposal. At that moment there was a binding settlement between the parties.

14The Grievor does not dispute that in making the counter-proposal on February 10, 2023, the Union was doing so on his behalf as well as its own. The Grievor simply asserts that he did not understand paragraph 7 to include any grievances or allegations he might have subsequent to February 10, 2022.

15A settlement is a form of contract. In general, the intention of the parties to a contract are to be discerned from the words they use in expressing their agreement, not their subjective intentions. The words used by the Employer the Union and the Grievor in this case could not be clearer: they agreed that the settlement resolved all outstanding grievances relating to OSS and all allegations of harassment and discrimination up to the date of the settlement. The date of the settlement was February 10, 2023, not February 10, 2022. Accordingly, the settlement resolved the Grievor’s grievance dated July 21, 2022.

16Accordingly, I find the Employer the Union and the Grievor concluded a settlement on the terms set out in the Union’s email dated February 10, 2023. I remain seized with respect to any disputes with respect to the interpretation or implementation of the terms of that settlement.