PSGB # P/0090/98, P/0010/99
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
David Lundie & Roger Lavoie
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: Gary Pickering
FOR THE EMPLOYER: Christopher Jodhan, Len Marvy Counsel, Legal Services Branch Management Board Secretariat
HEARING: April 5, 2000
Mr. David Lundie worked for the Ministry of the Solicitor General and Correctional Services (the Ministry) at the Brookside Youth Center during the Ontario Public Service Employees Union strike which occurred between February 26th and March 31, 1996. Mr. Roger Lavoie was the Superintendent of the Brockville Jail during the strike. The grievors are Schedule 6 employees. They both filed complaints which were forwarded to the board for hearing, claiming overtime payments and compensation for standby, on call, and also, in Mr. Lavoie's case, shift premiums.
Both grievors signed release forms -- Mr. Lundie on Nov. 30th, 1998 and Mr. Lavoie on Nov. 26th, 1998. The release forms are identical except for the amount of money paid to each grievor which has been omitted here.
RELEASE
The parties agree to settle all matters pertaining to the Grievor's claim for compensation from the Crown, arising between February 26, 1996 and March 31, 1996 (the "Strike"), without precedent or prejudice to any other matter between these parties, on the following basis:
The Crown shall pay $XXXX to the Grievor in return for work performed by the Grievor during the Strike, subject to statutory deductions;
The Grievor acknowledges that the payment set out in paragraph 1 satisfies any and all obligations which the Crown may have to this Grievor at law or otherwise;
In consideration of the payments set out in paragraph 1, the Grievor withdraws any and all grievances against the Crown related to Strike pay, and hereby releases and forever discharges the Crown. its servants, agents, and directors of and from any grievances, actions, causes of action, claims, and demands of every nature and kind arising out of or as a result of or in any way relating to the Grievor's pay during the Strike, including, but not limited to, all grievances or complaints under the Public Service Act and the Employment Standards Act. The signing of this Settlement and Release shall not preclude the Grievor from pursuing his/her pre-existing grievance to the Public Service Grievance Board ("PSGB") regarding the application of O'Donnell and the Crown. P/OO23/96 to pay received during the Strike.
The parties agree that the terms of this Settlement shall be kept confidential and will not be disclosed to any person, except as required by law.
The Grievor agrees that this Settlement and any considerations are deemed to be no admission of liability whatsoever on the part of the Crown.
The Grievor acknowledges that he/she fully understands the terms of the Settlement, and that he/she voluntarily accepts the terms after an opportunity to seek and obtain independent legal advice for the purpose of making full and final settlement of all claims as aforesaid.
At the hearing into the grievances on April 5th 2000, the employer objected to the board's jurisdiction to hear the grievors’ complaints that there was an outstanding issue of payments for standby. Mr. Marvy argued that, given the release forms, Mr. Lundie and Mr. Lavoie were prevented from bringing the issue of standby pay to the board. He pointed to the language of the settlement that the grievors agreed that any claim for compensation for work done during the strike was withdrawn in consideration of the payment made to each. He emphasized that the language of paragraph 3 was clear that any claim or grievance claiming compensation for work done during the strike was to be withdrawn except if the grievor had a pre-existing grievance with the board claiming overtime payments as provided in the O’Donnell, P/0023/96 (Leighton) decision. The grievors here are not pursuing overtime payments based on the O’Donnell decision.
Mr. Pickering argued that the release form had to be read in its entirety. He argued that the language of paragraph 3 referred to grievances arising out of “pay during the strike.” The grievors had no objections with pay received during the strike. The issue was what they were not paid after the strike was over. Mr. Pickering submitted that the grievors were not lawyers and understood the release at face value. He acknowledged that the only claim the grievors were making to the board was for compensation for standby performed during the strike.
DECISION
Having carefully reviewed and considered the submissions of the parties, I have decided to grant the employer's motion. I am of the view that the release form clearly refers to any and all claims or grievances relating to pay for work done during the strike. The only exception specifically provided in the settlement agreement is that if a grievor had made a pre-existing claim for overtime based on the board's decision in O'Donnell, this grievance would survive the agreement. All other claims had to be withdrawn. The grievors have acknowledged that they do not have a pre-existing grievance based on O’Donnell.
Any employee who signed this release did so for consideration, that is for compensation paid by the employer. The grievors in this case signed the agreement, acknowledging by way of paragraph 6 that they understood the terms of the agreement, which they were making voluntarily. They acknowledged, further, by signing the agreement that they had had the opportunity to seek independent legal advice if they wished to do so.
Therefore, I find that the grievors are bound by the terms of the settlement agreement which they signed. The agreement extinguishes any rights they may have had to pursue a grievance for standby pay before the board.
For the reasons noted above, the grievances are hereby dismissed.
Dated at Toronto this 16th day of May, 2000.