P-2004-1727

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Simon

Grievor

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Selwyn A. Pieters Barrister & Solicitor

FOR THE EMPLOYER

Len Hatzis Counsel Ministry of Government Services

HEARING

November 25, 2008.

Decision

1Mr. Paul Simon alleges that the employer has breached the minutes of settlement agreed to by the parties on September 12, 2007. More particularly Mr. Simon claims that the employer has not properly implemented clause 2, which required the employer to place the grievor in a developmental opportunity at the ALR 22 classification for six months, beginning on October 15, 2007. It is the grievor’s position that the employer should not have returned him to his home position, Labour Relations Officer, on May 13, 2008. The employer’s position is that there has been no breach of the minutes. The placement was a temporary developmental opportunity and there is nothing in the minutes that oblige the employer to make the position permanent. The parties agreed that I am seized of the minutes of settlement and therefore that I have the jurisdiction to hear this matter. The hearing into this dispute proceeded by way of agreed statement of facts and argument.

AGREED STATEMENT OF FACTS

1. Minutes of Settlement were executed by both parties on September 12^th 2007 that settled outstanding issues between the grievor and the employer;

2. A fundamental aspect of the settlement was that the grievor be placed in a developmental opportunity in the position of Labour Relations Specialist (LRS) for six months. The grievor was so placed on October 15, 2007;

3. Subsequently Mr. Gallus, the grievor’s manager, advised him that the plan for the developmental opportunity was to assign Fred Heerema as the grievor’s mentor and the grievor went along with it;

4. The developmental opportunity included exposure to LRS type files, job shadowing and assisting an LRS, and receiving feedback from the LRS regarding the grievor’s performance;

5. On May 13, 2008 (approximately one month after the conclusion of the six months stipulated in the agreement) Mr. Gallus called the grievor and came to the grievor’s office to complete an assessment in accordance with the Minutes of Settlement;

6. At the meeting noted above, the parties agreed that there were discussions about how the grievor could improve his performance in the LRS developmental position;

However, the parties are in dispute as to the specifics regarding the areas of improvement;

7. At no point did Peter Gallus advise the grievor that he had any concerns with his settlement rate on files during the developmental opportunity;

8. In discussions leading up to the meeting stipulated in paragraph 2 of the Minutes of Settlement, Peter Gallus advised the grievor that he would need some brief time to check with OLRB colleagues regarding any feedback on the grievor’s performance in the LRS position. The parties scheduled the meeting; and the meeting took place.

SUBMISSIONS OF THE PARTIES

2Mr. Pieters argued that the employer should not have returned the grievor to the Labour Relations Officer position. Nothing in clause 2 of the minutes of settlement provides that the grievor should be returned to this position. Counsel argued further that the employer had to prove that the grievor had failed to perform effectively in the position, before they could return him to his home position. He noted that there was no evidence before me that the grievor had not performed well. Mr Pieters also emphasised that the employer did not meet with the grievor until May 13, 2008, and then returned the grievor to his home position, effective as of April 15, 2008. Moreover, in counsel’s submission, given I am seized with the implementation of the agreement, the employer was bound to bring the matter back to me before returning the grievor to his home position. Therefore, there has been a breach of the settlement and the grievor seeks reinstatement to the LRS position at the ALR 22 classification with all lost back pay and aggravated damages.

3Counsel for the employer argued that the issue before me was a question of the interpretation of clause 2 of the minutes. Counsel submitted that the language of the clause is clear and the language binds the parties. The clause required that the employer put Mr. Simon in a developmental opportunity for a period of six months, no later than October 15, 2007. Counsel submitted that there is no dispute that the employer placed Mr. Simon in the LRS position and paid the grievor accordingly, at the higher pay (ALR 22 classification).

4Mr. Hatzis argued that there was nothing in the minutes that suggested that the position was to be permanent. The contrary is true in counsel’s view the language of the clause specifically makes the developmental opportunity for six months. Clause 2 also refers to what shall occur “at the conclusion of the developmental opportunity.” In the normal course, employees return to their home positions when a developmental opportunity is completed. Developmental opportunities give employees experience in the job, which may assist them in a competition for the position. All of this supports a finding that the employer has met the obligations under the settlement and the alleged breach is unfounded. Finally, there is nothing in the statement of facts that would support an order for aggravated damages should I find that the employer breached the minutes.

5Counsel relied on the following cases in support of his submission: Gottwald and Ministry of the Attorney General (1998) PSGB/0127/96 (Leighton); OPSEU (Schaefer) and Ministry of Training, Colleges and Universities (2001) GSB/1839/99 (Abramsky); OPSEU (Union Grievance) and Ministry of Health (1995) GSB/443/95 (Kaplan).

DECISION

6The issue before me is whether clause 2 in the minutes of settlement, signed by the parties in full and final settlement of Mr. Simon’s grievance, gave the grievor something more than a developmental opportunity for six months in the LRS position. The language of the clause governs Mr. Simon’s entitlement. Clause 2 provides as follows:

The Employer agrees to place the Grievor in a developmental opportunity for a period of six months, no later than October 15, 2007. The developmental opportunity will consist of the employer placing the grievor at a higher classification (the ALR 22 level) and paying the grievor at an annual salary of $93,000.00 prorated for the period of the developmental opportunity. At the conclusion of the developmental opportunity, the Manager of Field Services agrees to meet with the Grievor and advise him of his views of the Grievor’s performance in the developmental opportunity including but not limited to advising the Grievor how he can improve his performance in the position.

There is nothing ambiguous about this language. The clause gives the grievor the right to a developmental opportunity as an LRS, specifically for a six-month period. In the parlance of these parties, a developmental opportunity is a chance for an employee to gain experience in a position (usually senior to their own) in order to better compete for the position in a competition. The clause also refers to the grievor being entitled to the higher pay of the ALR 22 classification for the six months. Further, the clause refers to a meeting that was required when the developmental opportunity ended. There is no dispute on the facts that the employer satisfied these obligations.

7I am not persuaded that the minutes required that Mr. Simon be made permanent in the LRS position, provided his performance was acceptable. For this to be so, clear language would need to be included in the minutes. There is nothing in clause 2 or anywhere in the minutes to suggest that Mr. Simon would be made permanent, if he performed well in the position or otherwise.

8The fact that the employer reviewed the grievor’s performance one month after the developmental opportunity ended is not material. The language of clause 2 is clear. The developmental job opportunity was for six months. When a developmental opportunity ends, the employee returns to his or her home position. This is what properly occurred, when Mr. Simon returned to the Labour Relations Officer position, his home position.

9This board has recognized the importance of honouring grievance settlements. (See Gottwald, supra). Once the parties have reached and executed minutes in full and final settlement of a dispute, they must be confident that they can rely on the terms of the agreement. In this case, there is no ambiguity in clause 2 and no compelling reason to interfere with the minutes of settlement. Moreover, the evidence is clear that the employer has met its obligations under the settlement.

10Thus, having carefully considered the submissions and the evidence of the parties in this matter, I have decided that there has been no breach of the minutes of settlement and I hereby dismiss the complaint.