GSB# 2021-2088; 2021-2891; 2022-3563

UNION# 2021-0201-0003; 2021-0201-0004; 2022-0201-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Spracklin)

Union

• and -

The Crown in Right of Ontario (Ministry of Health)

Employer

BEFORE

Annie McKendy

Arbitrator

FOR THE UNION

Georgina Watts Morrison Watts Counsel

FOR THE EMPLOYER

Dimitrios Molos Treasury Board Secretariat Counsel

HEARING

October 14, 2022, February 1, 2023 and June 6, 2023

Decision

1The Employer brought a motion on June 6, 2023, requesting that I deem grievances 2021-0201-0003, 2021-0201-0004 and 2022-0201-0004 to be resolved.

2The three grievances were scheduled to be heard pursuant to article 22.16 of the collective agreement. This Decision is therefore issued pursuant to article 22.16, with brief reasons and without precedent.

3The parties provided me with brief submissions. The relevant facts were stipulated by the parties and there was no substantive disagreement as to what took place.

4Two days of hearing were held during which the parties attempted to reach a settlement. On the second day, February 1, 2023, the Union made an offer to resolve the grievances, which was not accepted by the Employer at that time.

5The Employer submitted that on February 1, 2023, the Union explicitly left open their offer to resolve the grievances. The parties agreed on the amount that would be paid to the Grievor. The outstanding disagreement related to the discipline that was the subject of one of the grievances, and more specifically to the purposes for which the discipline could be relied upon in the event that the Grievor received further discipline prior to its removal from her record pursuant to article 22.15. The Union’s final offer included language that would limit the Employer’s ability to rely on the discipline to a narrow set of circumstances similar to those that had formed the basis of the discipline at issue.

6Several weeks after the hearing, counsel for the Employer received instruction to agree to the term limiting the purpose for which the discipline could be relied upon and provided the Union with draft minutes of settlement reflecting their agreement. However, the Union advised them that the Grievor was no longer in agreement with the proposed settlement. As such the Employer brought the present motion to enforce the agreement.

7Counsel for the Employer directed me to the Board’s decision in Ontario Public Service Employees Union v Crown in Right of Ontario, 2013 CanLII 74176, in support of their position that the oral offer made by the Union was binding once there was agreement on the substantive issues. The Employer submitted that the agreement crystalized when their agreement to the last issue, the purpose for which the suspension could be relied upon, was communicated to the Union.

8In response to the Employer’s motion, the Union acknowledged that their notes also reflected that the offer had been left open. They further acknowledged that the Employer’s proposed minutes of settlement contained clauses that met the essential elements of their Feb 1, 2023 offer. However, the Union submitted that the Grievor had changed her mind about wanting to enter into the settlement. The Grievor explained that she did not understand that her offer had been left open and that she believed she could change her mind.

9I find, based on the facts as stipulated by both parties, that the offer to settle was explicitly left open by the Union at the end of the mediation on February 1, 2023. I further find that when the Employer provided draft minutes of settlement to the Union, they accepted the essential elements of the offer and thereby the agreement crystallized. I therefore find that there exists an enforceable and binding agreement, from which the Union cannot now withdraw.

10The parties made no specific submissions on the Grievor’s position that she did not understand that if the offer was left open the Employer could accept it and that a binding agreement would then exist. However, I note that counsel for the Union had the authority to bind the Union, and consequently the Grievor. The Grievor’s misunderstanding does not change my finding that the agreement was binding when the Employer accepted it.

11For these reasons, I order the following terms, which were agreed by the parties to represent the essential terms of the agreement:

1. The Employer shall compensate the Grievor for twelve days (87 hours) of lost wages, subject to applicable statutory and mandatory deductions, at the Grievor’s rate of pay on April 4, 2022, as compensation for the alleged breaches.

2. The Employer will make the payment within 45 days of the issuance of this decision.

3. The Employer may rely on the discipline issued on December 17, 2021, only in considering any future incident of alleged wilful non-compliance or insubordination with respect to any health and safety policy or direction, and only for as long as the letter of discipline remains in the Grievor’s personnel file pursuant to Article 22.15.1 of the Collective Agreement.

4. The Grievances are fully and finally resolved.