P-2008-2786

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Paul Medeiros

Applicant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE APPLICANT

Selwyn A. Pieters, Counsel

FOR THE EMPLOYER

Peter Dailleboust Counsel Ministry of Government Services

HEARING

October 27, 2009.

DECISION

1. This decision deals with the question of whether the employer has breached the terms of a Memorandum of Settlement, dated March 2, 2009 which settled the grievance filed by the Applicant dated November 21, 2008.

2. The Applicant claims that the employer has breached that agreement by involving him in a tracking protocol for respondents in substantiated incidents under the Workplace Discrimination and Harassment Policy (WDHP). He received a letter informing him of this action three days after his grievance was settled at mediation, despite the fact that the tracking protocol was not discussed at mediation. It is his position that the employer’s action amounts to a disciplinary measure incompatible with the Minutes of Settlement. The employer is of the view that it has not breached the agreement, but is only complying with its obligations under an agreement with OPSEU by putting the grievor on the WDHP tracking protocol.

3. It is not necessary to set out the terms of the settlement of the Applicant’s grievance here, as it was intended to be confidential, except as required to implement it. It is sufficient to note that, as part of the mutual covenants, the parties agreed to a full and final settlement of the grievance, without prejudice or precedent to any future and/or similar matters, and that the written settlement represented the complete settlement agreement between the parties in relation to the grievance in question and any related matters. Further, the Minutes of settlement recited that the agreement represented a full and final settlement of all outstanding grievances and claims against the employer. It did not reference the tracking protocol directly or indirectly.

4. As background to this dispute, both counsel addressed the decision of the Ontario Crown Employees Grievance Settlement Board (the GSB), OPSEU (O’Brien) and Ministry of Correctional Services, (August 1, 1995) GSB # 1948/93, (Finley), referred to by both parties as the “O’Brien award”, and the more recent related Order of the GSB, dated October 13, 2000, GSB # 1948/93, 0179/94 and 0236/94 (Leighton), which incorporated the parties’ agreement as to a tracking protocol related to the Systemic Change Programme. That protocol provides, among other things, that where there is an incident substantiated through the WDHP Operating Policy, a letter will be sent to the Assistant Deputy Minister advising that the respondent’s manager and the Regional Director are aware of and have reviewed the material facts of the incident and any discipline arising therefrom. Copies are to be provided to the president of OPSEU, the respondent, his or her personnel file, the manager and the Regional Director. If there is no further incident within three years of the first, all the correspondence shall be removed at the respondent’s request.

5. It is the Applicant’s position that issuing such a letter regarding the incident in which he was a respondent flies in the face of the settlement. The Applicant asks that he be removed from the tracking protocol, and the letter be withdrawn immediately, rather than in 2011 as stated in the letter from the employer. Counsel for the Applicant notes that the terms of the settlement were without prejudice or precedent and thus cannot be used in future or similar proceedings. Further, he submits that this case does not affect the employer’s obligations under the O’Brien award, or notice would have been given to OPSEU and possibly others.

6. On behalf of the employer, counsel submitted that the matter has to be viewed against the background of the fact that the WDHP is a separate regime from any related disciplinary action taken by the employer. Once a WDHP complaint is lodged, an investigation occurs, culminating in a report of the investigator, which, in the matter in which Mr. Medeiros was a respondent, was accepted by the employer. Once a report is accepted, the employer understands its obligation under the O’Brien award to be that a substantiated matter is to be placed on the agreed tracking protocol. After the report is released, the matter may go to a discipline review committee, although there will be some cases where there is no discipline. It is the employer’s position that tracking pursuant to the protocol does not amount to discipline, and is not used for progressive discipline. Counsel characterizes it as “simply a commitment to OPSEU”, as part of the systemic change process. He notes the employer’s position that by virtue of the employer’s commitment to OPSEU, it becomes a term and condition of employment for management employees such as the Applicant. Counsel submits that a manager could grieve the application of the O’Brien protocol, but that it is a different issue from whether there was substantiated discipline for just cause.

7. In the employer’s view, it is an automatic consequence of the O’Brien award that any substantiated allegation goes into the tracking protocol, and the employer does not have the legal authority to contract out of it. Noting that the O’Brien award is not a statutory restriction on the employer’s ability to contract, counsel submits that it would nonetheless be untenable to contract out of those obligations and have to possibly face grievances and applications before the GSB, PSGB and the Human Rights Tribunal. Employer counsel argues that the idea that the settlement released the employer from its obligations under the O’Brien award would be very far reaching, and urged against such a finding.

8. Further, and given that the GSB retained jurisdiction over the O’Brien award, employer counsel submits that the PSGB is limited to a finding on whether the settlement contemplates the parallel process of the tracking protocol. He also submits that if this is to be considered a dispute over the interpretation of the O’Brien award, OPSEU would get notice, and the GSB would have jurisdiction. However, given the terms of the settlement, the employer’s position is that the settlement stands on its own, speaking to the matters dealt with in it, and not the tracking protocol.

9. Counsel for the employer also refers to the Nov. 29, 2002 decision by H. A. Hubbard in the implementation phase of McKinnon v. Ontario (Ministry of Correctional Services) 2002 CanLII 46519 (ON H.R.T.) at para. 285, where the adjudicator defers to the ongoing systemic change program and the O’Brien decision. Employer counsel asserts that if the Minutes of Settlement were interpreted as contracting out of the O’Brien decision, it would put the employer in the position of contracting out of the Ontario Human Rights Code, which would be barred by statute. Therefore, he asks for the same deference offered by Adjudicator Hubbard in the McKinnon matter.

10. In reply, Applicant’s counsel disagreed with the employer’s characterization of the tracking protocol, and asserted it served as part of possible discipline. Counsel argues that in practice there is nothing automatic about being placed on the tracking protocol, and referred to cases of substantiated incidents where the Ministry could not proceed because of an agreement with OPSEU resolving a strike. He also referred to continuing allegations of problems with the tracking system, and the potential of connecting the tracking to discipline and promotion, referencing the discussions in two of the decisions in McKinnon v. Ontario (Correctional Services), 2007 HRTO 4 and 2009 HRTO 862 (Hubbard).

11. Applicant’s counsel stresses that once parties have reached a settlement, they must be able to rely on its terms. Counsel notes that the Applicant is not alleging bad faith, but submits that timing is everything. He underlines that this case has been going on for years, concerning incidents prior to June 2007, with a final investigation report released August 30, 2007, which was accepted by the employer in April 2008. Placement on the tracking protocol did not occur until March 5, 2009, almost a year later, and after the March 2 settlement.

12. I have carefully reviewed the submissions made, and the authorities referred to, and the references to the background context of the implementation of the decisions and orders made in the context of the McKinnon and O’Brien matters. However, it is my determination that it is unnecessary to embark upon an analysis of the agreement made between OPSEU and the employer as to the tracking protocol, or any of the findings in the O’Brien or McKinnon decisions. The question to be answered is a limited one, and does not depend on these matters involving other parties.

13. My task is to determine whether the settlement arrived at was breached when the employer placed the Applicant on the tracking protocol. There is certainly no explicit breach. The protocol is not mentioned or referenced at all in the terms of the settlement, and neither party argued otherwise. The settlement explicitly states that it is the entire agreement, which argues persuasively against a finding that anything not dealt with in the settlement, such as placement on the tracking protocol, could breach it.

14. Neither do I find it to be a necessary or appropriate inference from the terms of the settlement that the Applicant would not be put on the tracking protocol. The tracking protocol is not, on the material before me, disciplinary in itself. The employer maintains that it does not use the tracking tool for disciplinary purposes, and does not consider placement on the protocol to be a disciplinary measure against Mr. Medeiros. There is nothing before me to the contrary, except the assertion of Applicant’s counsel, which I do not find a sufficient basis in fact or law to find that the employer disciplined the Applicant in placing him on the protocol. If the employer were to use the protocol as a disciplinary measure or as a basis for progressive discipline in the future, other considerations would arise, but those are not the facts before me at this time.

15. Employer counsel also asserted that many others received notice of placement on the tracking protocol at the same time, a suggestion that the timing was not personal to the grievor, but there is no evidence or agreed fact in this regard, so I make no finding in that respect. Nonetheless, I accept employer counsel’s concession that the timing of the notice of the placement on the tracking protocol was not ideal, coming on the heels of the settlement. However, the fact that placement on the tracking protocol occurred so long after the investigation report, problematic though it is from the point of view of the efficacy of the tracking as well as from the point of view of the Applicant in terms of knowing where he stands, does not somehow turn it into a breach of the Minutes of Settlement.

16. In sum, I find that the mere fact of putting the Applicant on the tracking protocol is not a breach of the Minutes of Settlement. Therefore, for the reasons set out above, the Applicant’s request for a declaration that the employer has breached the Minutes of Settlement is hereby denied. It is not, however, inconceivable that the protocol could be used in a manner that would constitute a breach in the future. The Board will continue to remain seized, as the settlement provides, for purposes of interpretation and implementation of the settlement, should it again be necessary.

17. The Applicant also asked for an order that the employer pay his costs of the day. However, there is nothing in the material before me sufficient to depart from the Board’s long-standing approach not to award costs, even where an Applicant is successful.

Dated at Toronto this 2nd day of February 2010.