P/0010/97

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Rowland Carey

Grievor

• and -

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

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Rowland Carey

FOR THE EMPLOYER

David Strang Counsel, Legal Services Branch Management Board Secretariat

HEARING

February 4, 2000

Decision

Mr. Roland Carey, the grievor, was initially suspended with pay on June 10, 1996. His employment was terminated for just cause on May 7, 1997. His wrongful dismissal grievance before the board was held in abeyance pending the outcome of his criminal trial, which occurred in January 1999. Shortly after he was acquitted at the trial, the parties entered into settlement negotiations that led to Minutes of Settlement dated June 22, 1999. Mr. Carey disputes the implementation of those minutes and has four new grievances. One of the complaints was resolved before the hearing into this matter on February 4, 2000. The parties agreed at the hearing that they could resolve a second complaint regarding an interest claim. The two remaining complaints are a claim for 1) expenses and 2) overtime and premium payments for the period of time between June 10, 1996 and February 4, 2000. The parties agreed that I had the jurisdiction to decide their dispute.

The settlement included reinstatement and certain payments for backpay. The parties agreed that the terms of the agreement would be kept confidential and requested that I either seal this order, or avoid referring to the specifics of the settlement. I have decided not to seal the order, but given the parties agreement to keep the settlement confidential, I will not refer to or quote the terms of the minutes except as required.

Mr. Carey is claiming that certain expenses incurred between his suspension and the hearing into this matter should have been paid pursuant to the Minutes of Settlement. Mr. Carey submitted these expense claims to the employer and it declined to pay them. The expenses include mileage to lawyers and doctors' offices, and to court. They include parking charges and meals on days when this travel was required. There is also a claim for photocopies of documents for court and Mr. Carey's court trial transcript.

Mr. Carey argued that all of these expenses were incurred because his employment was wrongfully terminated. He contended that since he was innocent, he should never have been fired. In order to be made whole these expenses should be paid.

Mr. Carey makes the same argument to support his claim for overtime and shift premiums which he submits he would have earned had his employment not been terminated. He estimated this claim, based on prior years to come to $31,250.

Mr. Strang argued for the employer that the Minutes of Settlement contain a release clause that was negotiated by the parties, in which for consideration, Mr. Carey releases all claims against the Crown. The release clause specifically permits Mr. Carey to make a claim of malicious prosecution. In counsel's submissions, new claims pertaining to the matters settled are barred by the release clause. The settlement was full and final as to the claims arising from the grievor’s termination. The agreement also includes an acknowledgement that Mr. Carey received independent legal counsel with respect to the settlement.

Mr. Carey argued in response that he was pressured to sign the Minutes of Settlement, although he conceded that he was not asking the board to set it aside. He also acknowledged that he and his counsel did not remember the expense claims when they negotiated the settlement.

DECISION

Having carefully considered the submissions and documentary evidence of the parties, I find that there has been no breach of the Minutes of Settlement by the employer. There is nothing in the Minutes of Settlement that provides for payment of the expenses or the premium payments. The Minutes specifically acknowledge that the settlement is full and final of all his claims relating to his termination and reinstatement. The release form clearly prohibits the grievor from any new claim relating to the subject matter of his original grievance. While Mr. Carey may have felt pressure to settle on the eve of his hearing, he did agree to the terms of the settlement, and he is bound by it. It is important to note that the grievor had the benefit of independent legal advice. He cannot come before the board now to assert that, in effect, he made a bad deal and wants more. The employer must be able to rely on the terms of the settlement, particularly on the release clause, or there would be little incentive ever to settle a grievance.

For the reasons noted above, the grievor's claims for expenses and premium payments including overtime are denied.

Dated at Toronto this 16th day of February, 2000.