HomeMy WebLinkAbout1987-1609.Klassen.89-04-06GRIEVANCE COMMISSION DE
SEITLEMENT RkGLEMENT
BOARD DES GRIEFS
Between:
1609/87, 1297/08
IN TEE MATTER OF AN ARBITRATION
Under
TRE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
TEE GRIEVANCE SETTLEMENT BOARD
OPSEU (Klassen)
- and -
The crown in Right of Ontario
(Ministry of Education)
Grievor
Employer
Before:
J.W. Samuels
T. Browes-Bugden - Vice-Chairperson
- Member M.F. O’Toole - Member
APPEARING FOR
N. Roland THE GRIEVOR: Counsel
Cornish ti Associates
Barristers & Solicitors
APPEARING FOR C. Taylor TEE EHPLOYER: Staff Relations Officer
Staff Relations Branch
Management Board of Cabinet
HEARING: February 1, 1989
*i _.
2
For sixteen years, Iona Klassen was a Resource Brailhst at the W.
Ross Macdonald School in Brantford. Her job was to convert books and
other printed materials into braille ,for blind students, using a Perkins
Brailler, a manual device which imprints dots on paper.
In 1981, by most unfortunate accident, Ms. Klassen’dropped liquid
solvent into her eyes. This damaged her cornea and made her especially
sensitive to ultraviolet light and glare. Thereafter, she has needed special
dark glasses to shield her eyes from ultraviolet light. Her impairment has
meant that she has difficulty working if special lighting is not available
which cuts down on the production of ultraviolet light. This has resulted in
many days off sick from her job.
In 1986, Ms. i(lassen was involved in an automobile accident. She
was struck from the rear and she suffered damage to the soft tissue around
her spine. This injury means that she cannot work for extended periods of
time on the Perkins Brailler, because of the muscular force needed to
operate the machine.
There are computerized braillers now, and in early 1987 Ms.
Klassen began training to operate them. However, she and her employer
have a difference of opinion concerning her ability to complete this
training, and concerning the possibility of her transferring to the
computerized braillers.
In April 1987, Ms. Klassen filed the first grievance before us.
Under “Statement of Grievance”, she wrote “Discrimination because of my
handicap”. Under “Settlement Desired”, she wrote “To be properly
trained. To be able to continue work with Computer Brailling in the
proper environment”.
In November 1987, she went off work because of.illness and she has
not been at work since then.
On October 5, 1988, Ms. Klassen filed the second grievance before
us. Under “Statement of Grievance”, she wrote
3
I grieve the employer’s continued actions
demonstrates a refusal to allow me to operate a
computerized brailler upon my return to work
and that their refusal to offer complete training
and practical assignments sufficient to allow me to
perform to the employer’s standards which is a
contravention of Article 18, but not exclusively.
Under ~“Settlement Desired”, she wrote
That the employer provide a complete and
comprehensive training package on the
computerized brailler with appropriate and
sufficient practical assignments sufficient to allow
me to perform to the employer’s standard with
full back pay and benefits including seniority,
pension and attendance credits, etc. retroactive to
September 6, 1988 and the current bank rate of
interest be paid on all moneys owing.
On October 25, 1988, Mr. J. A. Ryder, of the law firm Gowling &
Henderson, wrote to Ms. J. Shirlow, Registrar of this Board, as follows:
Re: Grievances of Iona Klassen
GSB File No: 1609/87 (First Grievance) (Second Grievance dated October 5, 1988 but not yet numbered)
OPSEU File No: 87R87 (First Grievance) (Second Grievance dated October 5, 1988 but not vet numbered)
Attempts to mediate the captioned grievances have thus far
been unsuccessful.
writer and Ms. We therefore request that you contact the
Christina Taylor, Human Resources Secretariat, at 965-2002 to arrange a mutually convenient date for arbitration. We
expect that you will receive the second grievance shortly.
Thank you for your attention.
-
4
Though Mr. Ryder wrote this letter in late October 1988, the
second-stage grievance meeting concerning the second grievance was not
held until December 1, and the .Miiistry’s reply came on December 8. The
grievance was denied by the Deputy Minister’s designee, Mr. K. Whittaker.
In his letter, Mr. Whittaker noted that the first grievance was scheduled for
hearing on February 1, 1989, and he said “It appears that the grievance is
related to the one filed by yourself on April 22, 1987..........Given this, the
Board should hear and deal with both grievances at the same time”.
It is to be noted that, in his letter, Mr. Ryder referred to the second
grievance as “Second grievance dated October 5, 1988 but not yet
numbered” and he told Ms. Shirlow that he expected thatshe would receive
the second grievance shortly. In fact, Ms. Shirlow did not see the second
grievance until January 20, 1989, when she received a letter from Ms. M.
Comish of the.law firm Comish & Associates, informing the Board that
now Ms. Comish represented the grievor. Ms. Comish attached a copy of
the second grievance. Ms. Comish went on to say:
At the present time the only grievance scheduled for hearing is the April, 1987 grievance which is scheduled for February
1st, 1989.
As the matters involved in these two grievances have similar
factual circumstances and arguments, we are prepared to agree
to the employer's request to have them heard and dealt with
at the same time.
Whittaker,
In this regard I enclose a copy of Keith
Deputy Minister's Designee's letter dated December Sth, 1988. The employer is now being represented by
Christina Taylor from the Human Resources Secretariat..
On January 26, Ms. Shirlow wrote to the Union concerning the
second grievance. She said:
A copy of a grievance dated October 5th,
the 1988 was filed as part of correspondence received from Ms. Cornish. In checking the
board's files it was found that there is no ~record of an application being filed by the union for this grievance. Therefore
the board would appreciate re mceiving instructions
rementioned gr from you as to . ievance should be processed as a new whether the afo
application.
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5
That same day, Mr. I. Oram, the Union’s Acting Co-ordinator of
Grievances, responded to Ms. Shirlow as follows:
Phaee be advised that OPSEU view6 the letter 6mt to you from
Mary Cornislh datlrd January 10
, 1989 as an application for hearing
before the Grievance settlement Board.
Plea6e prooe66 aouording to Ids.
the letter.
CO~i8h'S raquoet a6 6et out in
On January 30, two days before our hearing commenced, Ms.
Shirlow wrote to Mr. Oram to say:
Receipt
copy of
is acknowldeged of your letter dated January 26th,
which has been forwarded to the
1989
information.
employer for its
grievance
Further to your request, the board is processing the
form dated October 5th, 1988 a6 a new
has assigned the file
application and
number of
correspondence
1297,aa. future pertaining to this Any matter should be accordingly. addressed
A copy of this letter went to Ms. C. Taylor, the Ministry’s Staff
Relations Officer who was handling Ms. KIassen’s file. Ms. Taylor
immediately wrote to Ms. Shirlow as follows:
Further to your letter to Mr. Ivor Oram of today's date, it is
the Employer's position, that pursuant to Article 27.4 of the
collective agreement, the Union's application to the Grievance
Settlement Board for a hearing in this matter is untimely. The
stage 2 response to this grievance was dated December 8, 1988.
May I draw your attention to Article 27.13 of the collective
agreement under which provision this grievance is deemed to have
been withdrawn.
Clearly on this basis this grievance can neither be scheduled
separately or consolidated with any other grievance.
6
In the meantime, on January 26, Ms. Cornish wrote to Ms. Taylor to
clarify the Union’s position with respect to the substance of the two
grievances. Ms. Comish said:
WC intend to allege that the employer has engaged in a
pattern of conduct in dealfng wfth the grievor*s disabilities
which has resulted in the follOWlng violations of the
COllectiVe agreement:
a.
failure to make reasonable provieionr for the grievor's safety and health contrary to Article 18;
b. c!lscriminatory and unlawful exercise of
managementle right ta assign work, classify, train
and deploy teeources and equipment;
C. unjust disciplinary action by penaiizing her for
her lagitlmate' health absences and harassing and
ultimately effectively suspending her arising from
her attempts to assert her right to a safe
workplace free of discrimination on the basis of
disability.
The April 23, 1987 grievance deale with these violations up
to that data while the later grievance of October 5, 1988
deals with the pattern of conduct subsequent to April 23, 1988 Which culminated in the refusal to allow the grievor to
return to worlc and be accommodated in September, 1988.
At our hearing, Mr. Roland confirmed that he would make the case
as outlined in Ms. Cornish’s letter of January 26.
At the commencement of our hearing on February 1, .the Ministry
raised a number of preliminary objections concerning the two grievances.
In a nutshell, the objections are:
7
With resuect to the first grievance
That it complains of “discrimination because of handicap”, which
is a matter falling under the Ontario Human Rights Code, and
must be dealt with by the process established in the Code, and is
beyond the jurisdiction of this Board.
That it does not complain of a violation of Article 18, nor does it
complain about unjust discipline, and the grievor cannot now
expand the grievance to encompass these matters.
That this Board does not have jurisdiction to deal with a
complaint about lack of training, because this is a matter
exclusively within management’s rights.
With respect to the second grievance
l That it was referred to arbitration out of time, and must be
considered to have been withdrawn.
l That it does not complain of a violation of Article 18, nor does it
complain about unjust discipline, and the grievor cannot now
expand the grievance to encompass these matters.
l That this Board does not have jurisdiction to deal with a
complaint about lack of training, because this is a matter
exclusively within management’s rights.
With respect to the first grievance, in our view, it raises only one
complaint-discrimination on the basis of handicap. Mr. Roland suggested
to us, by a remarkable feat of semantic legerdemain, that the’ grievor’s
words in fact raised Article 18 and also complained of unjust discipline.
Article 18.1 of the collective agreement provides:
The Employer shall continue to make reasonable
provisions for thesafetyand healthof itsemployees
during the hours of their employment. It is agreed
lhatboth the EmployerandtheUnionshallco-oper-
ate to the fullest extent possible in the prevention of
accidents and in the reasonable promotion of safety
and health of all employees.
8
While we acknowledge, as this Board has done before, that a
grievance is not to be construed overly strictly, and that the Board can give
some meaning to the words chosen by the grievor (see, for example,
Heffering, 504/80 (Delisle), at page 3-4), the grievor cannot change the
substance of the grievance at the hearing.
In this case, the first grievance did not complain of a violation of
management’s obligation to make reasonable provision for the safety and
health of its employees. Nor did the grievor ,suggest she was being
disciplined unjustly. She complained of discrimination on the basis of
handicap, and that was all. The remedy she sought was an accommodation
which would permit her to continue gainful employment with the Ministry.
And this is a complaint which is beyond our jurisdiction. It is a
matter for the process established under the Ontario Human Rights Code,
and the grievor has in fact made a complaint to the Ontario Human Rights
Commission which is now being considered. This Board has dealt with this
point many times before. While at the outset, the Board was willing to
entertain a complaint of a violation of the Ontario Human Rights Code (in
Singh, 240/79 (Eberts), at pages 6-ll), later decisions have uniformly
ruled that this is beyond our jurisdiction (see Noah, 767/85 (Draper), at
page 4; Aubin, 1044185 (Gandz), at page 4; Mousseau, 1182185 (Jolliffe), at
page 10; MacKenzie, 1243187 (Ran&my), at pages 9-10; and again, in a
decision released only days before our hearing commenced, Beintner, 1841
and 1842187 (Roberts), at pages 7-18). There is no point in our rehashing
the reasons given in this line of cases. For our purposes, the matter is
settled.
We find that we do not have jurisdiction to hear the first grievance.
9
With respect to the second grievance, firstly, in our view it was
referred to this Board in a timely fashion, though somewhat inelegantly,
when Mr. Ryder wrote to the Board on October 25, 1988.
Article 27.4 of the collective agreement provides:
If the grievor is not satisfied with.the decision of the
Deputy Minister or his designee or if he does not
receive the decision within the specified time the
gdevormayapplytotheGriavanceSedlement Board
for a hearing of the grievance withih fifteen (15) days
ofthedate he received thedecisionorwithin fifteen
Wdaysof thespecified time limitforreceivingfhe
decision.
In his letter of October 25, Mr. Ryder, as the grievor’s counsel at the
time, clearly applied to the Board for a hearing of && grievances. It may
be that there was some confusion about this at the Board and in the offices
of the Union and Ms. Comish, because the Board had not yet received .the
actual grievance, and did not get the piece of paper itself until Ms. Comish
forwarded it on January 20, 1989 (which resulted in the January
correspondence between Ms. Shirlow and the parties), but this does not
detract from Mr. Ryder’s clear language. He identified the grievance
sufficiently as “Second Grievance dated October 5, 1988 but not yet
numbered”, and he said that he wanted a hearing of “the captioned
grievance$ (emphasis added).
Furthermore, while Mr. Ryder jumped the gun, because the second-
stage grievance meeting had not yet taken place, in our view this does not
defeat the effect of his letter. His request would remain latent until the
second-stage meeting took place and the grievor received a reply which
was unsatisfactory. Mr. Ryder’s premature action caused no prejudice to
the Ministry. Indeed, Ms. Taylor received a copy of Mr. Ryder’s October
25 letter. It ought to have been clear to the Ministry and the Grievance
Settlement Board that the grievor wanted to proceed to arbitration on the
second grievance. Once before, this Board has ruled that taking. a step in
the grievance procedure prematurely d.oes not render the grievance
‘:: . . ,a
10
inarbitrable, provided there has been no real, prejudice (see Myszko,
2511187 (Verity), at pages S-9), and we agree with this ruling. The
purpose of Article 27.4 is to ensure that a grievor does not sit on his hands.
The grievor must decide in good time whether to proceed to arbitration
before the Grievance Settlement .Board, so that the employer will know
where it stands. In this case, the grievor did decide to go to arbitration in
good time. While there can be no arbitration hearing before a second-stage
grievance meeting, the grievor can decide before the second-stage meeting
that the matter will proceed ‘to arbitration if the second-stage reply is not
satisfactory.
Now, what is the substance of the second grievance? On its face it
speaks of a violation of Article 18. The grievor is entitled to try to prove
her allegation. From what we heard at our first day of hearing, it appears
that this complaint raises the following issues, with which we will deal
when we hear the evidence and argument on the merits:
l What is the employer’s obligation with respect to the grievor
under Article 18?
9 What is the relevance of the Ontario Human Rights Code in
the determination of the employer’s obligation under
Article 18?
l Have the grievor’s rights under Article 18 been violated?
l If her rights have been violated, what is the appropriate remedy?
l Can this Board order that the employer provide training
for the grievor?
l Can this Board order a particular assignment of duties for
the grievor?
.5 ;i 3
11
Finally, in our view, the second grievance does not raise a complaint
of unjust discipline. Again, Mr. Roland tried to fit such a claim within the
language of the grievance, but we simply do not agree with him.
We will reconvene .to hear the grievor’s second grievance, viewed as
a complaint of a violation of Article 18.
Done at London, Ontario, this 6th day of April , 1989.
“Ahdendum attached”
ADDENDUM .--._-._.-.-
I agree with the decisl.nn on the preli.minary i~~zues.
IHcx‘$ever ~ I feel it nec~sswy to comment nn the Human Right-,
Isrue. -
. '
l-he di‘ssent ,fI.lec1 by W. Wal,sh in the GSB decision (1182/l35
8. Mauswxw) Vice-Chairman - E.R. Jnll.if~fe, the dissen-t filed by
J. Mci'lanus j.. the GE33 decision (i&44/85 !:. ktbin) Vice--Chairman-
,5 . Gandz and the addendum .filf by I. Js Thnmson in the GSB
decisiw (1.243/B? L... MacKenziej Vice-Chairman ~- E. J.Katurhny
clearly outline the comments I have tn make on the Human Rights
I Ei5U@ ~