Marsha Fullerton v. Canadian Union of Public Employees and its Local 2936
File No.: 2445-99-U Date: January 20, 2000
Applicant: Marsha Fullerton Responding Party: Canadian Union of Public Employees and its Local 2936 Intervenor: The Participation House Project (Durham Region)
Before: David A. McKee, Vice-Chair
DECISION OF THE BOARD
1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995 ch. 1 ("the Act") alleging a violation of section 74 of the Act by the responding party, the Canadian Union of Public Employees and its Local 2936 ("CUPE"). By a decision dated December 13, 1999 the Board directed the applicant to file a complete statement of the facts upon which she relies in support of an argument that the Board should disregard the agreement attached to her application. On January 11, 2000 the Board received a letter bearing the applicant's name (but not signature), copies of two documents, and a brief note from a medical doctor.
2CUPE has asked the Board to dismiss the application for failing to disclose facts which could form the basis of a violation of section 74. The purpose of requiring the applicant to file the statement of facts was to enable the Board to properly assess the impact of the settlement agreement in the context of CUPE's motion. In considering such a motion, the Board must have regard only to the facts as alleged by the applicant and must ignore any contrary assertions in the reply or intervention.
3The facts are as follows. On August 4, 1999 there was an incident involving the applicant and a co-worker. On August 10, 1999 the program manager of The Participation House Project (Durham Region) ("Participation House") requested the applicant to attend a meeting with herself and the co-worker. In a letter dated August 11, 1999 addressed to Ingrid Harris, the applicant states as follows:
"Ingrid asked my co-worker to explain the circumstances which took place. After she did so Ingrid asked me also to explain what happened, which I did not. My comment was that I had nothing to say about this matter. My reasons were due to the fact that there was no union representation offered to me at any time. I did not communicate this since I felt vulnerable. Ingrid said as a result of my reluctance to comment about the incident that I was suspended without pay".
Later that day, the program manager appeared at the applicant's residence and handed her a letter. The applicant states:
"After reading the letter which was presented to me, I found that there were unfounded accusations relating to my mental well being, due to the fact that there was no authorized psychologists present at any time during these incidents. ... These unfounded accusations has led me to believe that I am being harassed by management".
4On August 12 the applicant's union representative called her to advise of a meeting to take place the following day. She attended the meeting that day, along with two representatives of Participation House and Mr. Nichol, a representative of CUPE. At this meeting, much to the applicant's shock, she discovered that her employer wished to discharge her. Again, her own statement is as follows:
"At this point I realized that I was being intimidated and manipulated into making a decision under extreme duress. I expressed this to Bill Nichol and he acknowledged it, but continued to encourage me to sign these documents. ... My union representative was not being supportive enough to me. ... Therefore, I did what most individuals do under extreme duress – I resigned to escape further torment".
5In support of this application, the applicant has also filed a note from Dr. Tak Lo, which states:
"To whom it may concern
Mrs. Fullerton has been under my care for her stress and anxiety for the last ½ year. Presently she is still receiving treatment for her stress and anxiety".
6The agreement is in the form of a settlement of a grievance concerning the applicant's discharge. It also contains a form of release to both Participation House and CUPE. As such, it represents a complete answer to any grievance, and indeed to this application. Neither could proceed further unless the Board were to conclude that CUPE had somehow violated section 74 in the circumstances in which the settlement was signed.
7The agreement itself is not unreasonable or one-sided. The grievor had been employed for two and a half years as a full-time employee and before that for seven years as a part-time employee in some capacity. While in this application she disputes that there was any cause for discharge, she acknowledges that she made no response to her employer's query about the August 4th incident, nor did she make one at any time. It is apparent from the applicant's brief statement that any discharge arbitration would be difficult and probably painful for the applicant. The settlement provides for a payment of five thousand dollars, less statutory deductions. The manner of the severance of employment is, curiously, not set out in the settlement. However, while both better and worse agreements might be concluded in other circumstances, or indeed might have been concluded in these circumstances, this agreement is entirely within the realm of reasonable settlements of a discharge grievance. Thus, recommending settlement on this basis is not prima facie a violation of section 74.
8Although the applicant has pleaded that Mr. Nichol, the CUPE representative, applied "duress" to her and "manipulated" her, no facts are pleaded which would enable the Board to reach these same conclusions. Indeed, the applicant asserts that she was able to express her discomfort to Mr. Nichol, who acknowledged it. This suggests to the Board that she was not suffering from any duress or intimidation, but rather simply the anxiety which would be encountered by any person facing the decision that the applicant was faced with on August 13. She denies the assertions she believes were made about her "mental well being" by Participation House at the time of her discharge. Her doctor's note does not suggest that she lacked the capacity to make an informed decision at any time. The fact that she changed her mind afterwards (and one day before she was to receive the last of the money due to her under the agreement) does not indicate that she was suffering from some form of coercion or duress when the agreement was signed.
9There is an absence of anything in the agreement itself, or any of the facts as alleged by the applicant which would allow the Board to draw a conclusion of coercion, duress or intimidation. Therefore, the Board considers that the application does not make out a case for the orders or remedies requested. For this reason, the Board dismisses the application without a consultation.
"David A. McKee"
for the Board