GSB#2022-0437

UNION#2022-0232-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McDavid-Bishop)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Leila Gaind Morrison Watts Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 16, 2023

Decision

1The Board is seized with a grievance dated February 2, 2022 filed by Ms. Arlene McDavid-Bishop (“grievor”) alleging that she was not screened in for an interview when she applied for a Court and Client Representative position. It is alleged that in denying an interview, the employer discriminated against her on the basis several grounds prohibited under article 3 of the collective agreement and the Human Rights Code.

2When the grievance first came before me on November 30, 2022, the parties agreed to engage in mediation. Despite efforts to settle discussions broke down. Employer counsel gave notice that a preliminary motion will be presented seeking the dismissal of the grievance. A date was scheduled to hear the motion.

3When the Board convened on January 17, 2023, to hear that motion the parties agreed to attempt mediation again. The parties were able on this occasion to agree upon terms of settlement.

4Employer counsel drafted Minutes of Settlement (MOS) and submitted it for the union’s approval. Once the union agreed to the content and language of the MOS, shortly before 1:00 p.m. the final document was prepared and shared for the parties to sign it electronically.

5At this time the union advised that the grievor had informed that she had to join a work-related conference call from 1 to 2:00 p.m. and that she should be able to sign the MOS as soon as her call is finished.

6In consultation with the arbitrator, it was agreed that the employer and the union would sign the document, and have the grievor sign it when she finishes her call.

7Accordingly, the union electronically signed the document at 1:03 p.m., followed by the employer at 1:14 p.m. The union undertook to forward the fully executed MOS to the employer after it is signed by the grievor.

8However, at 4:07 p.m. the same day, the grievor wrote an email to employer counsel, with copy to the union, stating, “I don’t consider this finalized/settled. I’d like to revisit this, as I’m not in agreement with a term.”

9The Board was informed that over the next several weeks the employer and the union held without-prejudice discussions regarding the possibility of getting the grievor to sign the document. However, as of the date of the hearing on June 16, 2023, the grievor has not signed the document.

10The employer sought an order declaring that the instant grievance was fully and finally resolved on January 17, 2023. The union did not make any submissions opposing the employer’s position.

11In Re Holder-Regis (OPSEU) and Ministry of the Attorney General, 2019-2371 (Anderson), the Board was faced with a situation where the employer and the union took the position that the grievance had been resolved, but the grievor disagreed. In finding that the grievance had been resolved despite the absence of the grievor’s agreement, arbitrator Anderson wrote the following about the standing and role of union counsel and the grievor in arbitration proceedings, and of particular relevance here, during negotiation of settlements:

6In general, while individual grievances complaining of a breach of a collective agreement are filed by the aggrieved employee, the grievance itself belongs not to the employee but to the union which is the party to the collective agreement with the employer. That is, the union has carriage rights of the grievance and the grievor has no independent legal standing to advance the grievance through the grievance or arbitration process. Consequently, the union and the employer may settle the grievance without the agreement of the grievor. Such a settlement may extend beyond the scope of the grievance to other employment related issues for which the union holds exclusive representation rights, including other grievances filed by the grievor. It is not uncommon, however, for a grievor to be made a party in their own right to the settlement of their grievance, even when not legally necessary to do so.

7Further, it is not uncommon for settlements to address complaints for which a union does not hold exclusive representation rights, such as alleged breaches of the Human Rights Code. Indeed, where there are or may be proceedings before the Ontario Human Rights Tribunal (“HRTO”) which raise some or all of the issues addressed by a grievance, an employer will typically have little interest in settling the grievance without at the same time resolving the Human Rights Tribunal proceedings. This is because there is generally little benefit to an employer in providing consideration to settle an employee’s grievance if the prospect of litigating the same issues before the Human Rights Tribunal remains. Accordingly, employers will typically seek a “global settlement” of all complaints which the employee may have, or at least all complaints related to the issues raised by the grievance. Such a settlement, of necessity, must include the grievor as an independent third party.

8During arbitration proceedings the legal representative of a union is just that: they are not the legal representative of the grievor. Similarly, during negotiations of a settlement, the union’s representative, by virtue of being its representative, has authority to bind the union, not the grievor. This distinction is generally of little practical consequence as the interests of the union and the grievor typically coincide, nonetheless it is real.

9Where, as here, the union and the employer seek to a negotiate a settlement to which the grievor will be a party in her own right, the union’s representative assumes a dual role. They continue to make representations as to the union’s settlement position, but they may also make representations as to the grievor’s settlement position, effectively becoming the grievor’s agent. The employer is entitled to rely on the representations made as to the grievor’s position.

12Those statement equally apply in the circumstances of the instant case. Following mediation on January 17, 2023, the union and the employer advised the Board that the parties had reached agreement on terms of settlement. Once the final draft prepared by employer counsel was approved by the union, all that was left to be done was for the parties to sign the MOS. As per the practice of these parties, the MOS included signature lines for signature by the employer, union, as well as the grievor. The employer and the union signed the MOS. The grievor in effect backed off and wanted to re-negotiate.

13When union counsel negotiated the terms of settlement, approved the language drafted by employer counsel and signed the MOS, she was doing all of that on behalf of the union as well as the grievor. The circumstances in the instant case are even more extreme than those in Re Holder-Regis, (supra). There the grievor did not agree to the terms of settlement at any time. Here, the grievor did, and subsequently refused to sign. See, Re Corbiere, 2011-3255 (Dissanayake).

14Therefore, the Board declares that the grievance was fully resolved on January 17, 2023. It is binding on the employer, the union and the grievor, and is enforceable as such. As agreed to by the parties in the MOS, the Board remains seized with jurisdiction to deal with any issues arising out of the interpretation or implementation of the terms of the MOS.