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HomeMy WebLinkAbout1992-3278.Pound.95-08-01ONTARIO CROWN EM~LOVEES EMPLOY& DE LA COURONNE DE L’ONTARIO \ GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100; TORONTO, ONTARIO. M5G 128 TELEPHONE/T~?LI!PHONE: (4 16). 326- 1388 18bo, R’UE OUNOAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG lZ.9 FACSIMILE/T$LkOPlE : (4 16) 325 1396 GSB #- 3278/92 I. OLBEU # OLB437/92' . L IN THE MATTER OF w ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ~Before ‘, . ., BETWEEN BEFORE: FOR THE GRIEVOR FOR THE EMPLOYER HEARING THE GRIEVANCE SETTLEYENT BOARD --. OLBEU (Pound) - and - Grievor The Crown in Right of Ontario ' (Liquor Control Board of Ontario)' F. Briggs I. Thomson J. Campbell Employer Vice-Chairperson Member Member . S. Philpott Counsel .Koskie & Minsky Barristers & Solicitors A. Raso Counsel Hicks, Morley,. Hamilton, Stewart, Storie Barristers & Solicitors D. Mombourquette Counsel Liquor Control Board of Ontario October 3, 1994 December 15, 1994 ./ On the first day of hearing, the patties had discussions in an attempt to narrow the issues and facilitate the expediency of the hearing. At that time, the Union told the Employerthat’ one of the issues in dispute the timing of the grievor’s return to work from a compensable injury. The Board reconvened on December 15,1994, and at that time we were advised that there were two grievances. The first grievance, dated December 17, 1992, states: I grieve that I have been denied benefits under the following articles, in the collective agreement - art. 8, 9, 12, 13, 20 and any other articles in the collective agreement and C.E.C.B.A. that are applicable. The remedy requested was, “to be made whole in all respects”. The second grievance I ‘\ , was dated October f3, 1994, which was the first hearing date, states: 21 (a) (b) and any other applicable article or statute. That the employer delayed the return to work date of the employee to the detriment ofthe employee. Employee’s doctor provided for a return to work as of January 8th/92 whereas her reemployment was delayed to August /92 by the Employer. . . The remedy requested was, “that the employee tc be made whole in all respects including : lost wages, benefits and credits etc.” The grietor, Karen Pound, was absent from work due to an injury compensable under the . Worked Coxnpensation Act R&O. 1990 c.W-11 from October of 1959 to January of1991. .She had a re-occurrence of the injury in October of 1991, and was off work until August of 1992. Prior to her retum’to work a dispute arose concerning her ability to return to’ light duties. After she returned to work she became aware that some of her benefits, such as vacation and sick leave credits, had been reduced as the result of her absence. The quantification of those benefits took some time to determine due to the fact that some of 1 .J ,,-. “/ -, 2 the grievor’s recprds were lost. While the amount of benefits was eventually resolved, . there remains the matter of whether the collective agreement allows the Employer to , reduce the benefit accrual of employees absent from work due to a compensable injury. ’ It is the Union’s position that, regarding the accrual of benefits, the collective agreement has been violated. As well, there was adverse impact discrimination which arises in the ._ : reduction of benefits. The parties are agreed that this issue is properly before the Board and will be heard after a determination is made on preliminarymatters. \ -. As a preliminary matter,.the Employer asked this Board to decide that the first grievance ; is restricted to the matter set out therein, that is, the denial of benefits. The collateral issue of the.grievor’s return to work is an entirely new matter which is not encompassed by the original grievance. The issue of return to work was never even raised during the . grievance procedure’ and the Board should not sllow anew matter to be. raised at the point of arbitration. Inthe alternative, if the bo,ard decides otherwise, it is the Employer’s position that the grievor-was accommodated and any delay in her return was because of a need to determine what duties she could perform. It was the Employer% position ‘that the second grievance is out of time and therefore this, ‘\ I/ board lacks ‘the jurisdiction to deal with it. In the alternative, if the board finds that the \_ second grievance is timely, the Employer has no objection to the board consolidating the ‘. second grievance with the first. , ~ I I 3 It is the Union’s assertion that the allegation regarding the return to work issue in . . encompassed by or included in the first’ grievance. In the alternative, the matter fs covered by the second grievance which this board has the jurisdiction to deal with. Ellen Thomas was ,a zone representative for the Union and was responsible for the investigation and filing of gtievances. She was contacted by the grievor regarding the fact that her vacation time and her sick time was in a minus position, that her pension contributions were not continuing and that she was having diff&lty getting back to work Ms. Thom,as vvas involved in a grievance meeting held on May 28, 1993 to discuss the \ grievance of December 15,1992. She testied that the meeting was attended by herself, Don’McDermott, Union Representative, the grievor and Nicole Mahoney, Nancy Hobey ‘, and Henry MacNaughton for the Employer. According to Ms. Thomas, only this issue of . benefits levels was discussed. She stated that the matter of,the grievor’s return to work was not addressed because the Employer could not provide all of the necessary information due to incomplete records. She testified that they wanted to talk about the issue of the grievor’s return to work. but, there was no opportunity. Some one from management sad that another meeting would be scheduled. In fact, there was no further meeting. Ms. Thomas said that the Employer had incomplete records for the grievor and that the Employer needed further information from the grievor’s file. Ms. Thomas was ,/.. -\ 4, never approached again by the Employer about the grievance. and she did not request a further meeting to discuss the matter further. In cross examination, Ms. Thomas conceded that she was aware of the time limits set out in the collective agreement for the filing of devances. She also stated that she knew ,within that time frame of the grievor’s problem with her return to work She did not get involved further because she had asked Mr. McDermott to assist the grievor. In fact, Ms. Thomas was unsure if she ever discussed,the issue of grieving her ability to return to work _. with the grievor. Ms. Pound testified that she had difficulty returning to work after her second absence ‘due to a compensable injury. She enlisted the help of Den McDermott from the union and, after some correspondence and a meeting held with Mr..McDermott, the grievor, the store . manager and a Worker% Compensation Benefit adjudicator, she retied to work . She realixed that there was a problem with her benefit level just before .her second absence in August of 1992, when she received an attendance record indicating that she ; .* was in a negative balance. She spoke with Larry Plynn but they did not resolve the matter between them. She filed her grievance in December of 1992. ‘. ; ( ‘7 /‘. ‘ ‘\ I : i 7 6 j. \ Ms. Pound’s recollectiori,of the grievsnce meeting held on May 28, 1993, was that Don McDermott was not present. She explained her position and made inquiries about the Employer’s position. Ms. Pound agreed that Mr. Mahoney restated the Employers position at this meeting and that she listened, notwithstanding his “rambling’~ about the provisions of the collective agreements. Ms. Pound agreed 6th the Ms. Thomas’ evidence regarding the reasons that the discussion did not progress at the. May 28,1993. It was her impression ‘\ J that no one knew how to read the information. , I In cross examination, Ms. Pdund conceded that she discussed whether to file a grievance regarding her return to work with Mr. McDermott. She could not recall precisely when that! conversation took place but it was before her final return to work She stated that, / generally the parties tried to deal with problems within the store. The grievor disagreed that she was not concerned with her inability to return to work until she found out about her benefit problems in August -1992. Ms. Pound was asked if she was free to discuss . matters during a meeting she attended on November 2,1992. She conceded that she did , I not mention the issue of her reinstatement because they discussed her benefit records the . . \ fact that some of those records were missing. She also conceded that it was fair to say that she ‘would not have filed any grievance if the number of vacation credits and other benefits had been acceptable to her and’she agreed. She thought she discussed her reinstatement with her store manager, Mr. Hodgin, at some point between August of 1992, and $lowmber of 1992. I i It was the grievor’s evidence that subsequent to the grievance being filed, she investigated the matter of ,her reinstatement with her Member of Parliament and the Human Rights Commission. Ms. Jean Chaykowsld has been,a grievance officer with the Union for sixteen years. She - wrote the first grievance. She testified that she understood that the grievance was filed because the grievor had not received all her benefits, including.vacation, sick leave and pension. Additionslly, Ms., Pound was not allowed to return to work Ms Chaykowsld said’ that Mr. McDermott was taking care of this matter and that was why she did not attend . I- . the-grievance meeting held on May 28,1993. She suggested that she, purposely worded the grievance so as to include any applicable articles of the collective agreement that may have been violated. She worded the grievance in this fashion so that ‘lawyers could fight . , it out”. ) In cross examin ation, Ms. Chaykowsld admitted that there was a significant difference _ between not receiving a particular level of benefits and having one’s human rights-denied by the Employer’s failure to accommodate. Her involvement with this matter had been a ‘. short telephone conversation atthe time of the Gling of the grievance,and attending at the instant hearing. She thought that Don McDermott was handling the matter for the grievor and therefore did not -have further contact with the grievor. Nicole Mahoney, the Human Resources Assistant for the Central Region; attended the grievance meeting held on May 28,1993. She agreed with the grievor’s evidence that Mr. McDermott did not attend. According to Ms. Mahoney, ne&her Ms. Pound nor Ms. J ‘Thomas mentioned the issue of reinstatement during the meeting nor did they state that there were other matters yet to be addressed. Ms. Mahoney disagreed with Ms. Thomas’ evidence regarding how the meeting concluded. She testified that all of the documents \ which set out the level of benefits presented at that meeting and therefore there was no need for another meeting or further discussion to clarify any questions. ‘_ t EMPLOYERSUBMISSION Mr. Mombourquette, for the .Employer, argued that the second grievance, dated October c 13, 1994, is two and a half years outside of the time limi& and’ was filed in an attempt to , circumvent the fact that the first grievance did not address the issue of the grievor’s return to work In considering whether to exercise our.discretion to extend the time limits, it is appropriate to look to the nature of the grievance. The subject matter of the grievance . is not an ongoing matter and therefore does not affect the grievor% ongoing rights in the ’ workplace. This is a discrete matter. Further, the Board ought to look at the period of the delay. : 8 : . The gxievance was sled more than two years after the alleged violation and that per&d of delay is, in and of itself, prejudicial. The grievor must be found to be responsible for the delay., The evidence was clear that the grievor lmew at some point between January and August of 1992, that she had a right to file a griev&nce regarding her reinstatement. By ,her own admission, she learned this from a discussion with Don McDermott. It is of no import why it was decided not to. file a grievance at that time, only that she did not. The failure to file a grievance regarding her return to work during that time led the Employer to Conclude that the matter was not an issue. \ The Employer has suffered prejudice because, if it knew that the grievor was going to arbitrate a-dispute regarding her return to work, the Employer may not have been required to continue to pay for ‘the cost of worker’s ‘compensation benefits for the grievor without the benefit of her se&e. Additionally, the Employer is prejudiced by the . deterioration of the evidence caused by the passage of time and its effect on memories.- ,, Dealing with the matter of inrhether the. scope of the original grievance includes the issue . of the grievor’s reinstatement, the Employer submitted that the language of the original grievance cannot be construed to encompass the matter. It is clear on the’ face of the grievance that the only matter is ,the denial of benefits. There is no reference to reinstatement as a problem that needed redressing. By all accounts, the issue of reinstatement‘was not raised at the grievance meeting held on May 28, 1993, or at any \ 9 time after that meeting until the first day of hearing before this Board. Indeed, the grievor admitted that the issue of her return to work would not have been raised if the matter of I, / her benefits were not in dispute. I I The Employer conceded that the grievor% benefits would have been increased if she .had been returned to work sooner. However, to suggest that the issue of whether she was ., properly returned to work is considered within the scope of a grievance regarding her benefits is a stretch. A matter as important as the alleged failure.of the Employer to accommodate an employees return to work is not a side issue or a matter which is assumed to be in dispute. It would be an issue of great import and would need to be --- squarely addressed by the parties and the evidence in this case is clear that this never occurred. . . UNIONAlhMENT Ms* Philpott, for the Union, suggested that it is cle& that the first grievance is formulated broadIy’enough to encompass the issue of whether the grievor was-reinstated to work in an appropriate fashion. The grievor was absent from work and was attempting’to return. During this time she was dealiig with a bureaucracy and was not given,a straight answer. Indeed, by all accounts some of her records were lost and had to be re-formulated. She was confused and did not understand the discrepancy in her benefit level. She eventually 10 understood that if she had been returned to work earlier; and the Employer’s position about the accrual of benefits is Forrect, -she would have lost fewer. benefits. It is not reasonable to expect that the grievor would have realixed this at the time of the filiig of the grievance nor is it reasonable to expect that she would set out the issue ‘on the grievance form. To accept the Employer’s position on the scope of the first grievance : would be to take an overly technical ‘approach. The matter ought to be liberally . construed so as to allow the real matter to be dealt with. The. matter of the grievor’s . return to work is not an entirely new matter. It is part of the .entire issue. One matter flows &rn the other. The Union contended that the colleMve agreement, neither limits the raising of matters I throughout the course of the grievance procedure, nor does it restrict this B,oard to deal r- only with those articles that are articulated on the grievance form itself. In the alternative, in the event that the Board does not agree with the Unions’s view of the scope of the first grievance, the second grievance should be found to be properly before this Boar& If the i Board finds that the first grievance does not encompass the matter of her reinstatement, then the firstthat the grievor would have been aware of the Employers position was the first’ day of hearing into this entire matter and she filed the grievan&e within the appropriate time period. i 11 However, if this Board finds the second grievance-to be outside the time limits set out in the collective agreement, it ought to exercise its discretion to extend those time limits and take jurisdiction of the matter. Section 45 (8)(3) of the L&our Relations Act R.S.O. 1990, as amended, c.L-2 provides such discretion. In these circumstances, the Board must find , that there are reasonable grounds for the extension and, in the complete absence of prejudice to the Employer as we have in the instant matter, the grievance should be heard on its merits. . \ DECISION Turning our attention to the fir;st grievance, we must find that the return to work issue is not part of, or encompassed by, the first grievance. There is nothing on the face of the grievance which would lead anyone to conclude that the grievor is Complaining about the issue of her return to work from her absence. We agree that there is nothing in the grievance procedure in thei collective agreement that limits the Union or the grievor to those articles alleged to have been violated on the face of the grievance. Technically, we would not find that the f&rre to refer to the provisions of the collective agreement alleged to have been violated sufficient grounds to uphold the Employer’s preliminary objection. What the Board did find persuasive was the complete lack of any reference on the grievance form, and the fact that there was absolutely no discussion about, the matter of ! i ./---. .' .f '., ~J ! 12 \ the grievor’s reinstatement at the grievance meeting or at any other time between the Union and the Employer until the first day of hearing. While we accept the grievor’s claim that she raised her concerns about her reinstatement with her manager at some point in the fall of 1992, we did not hear any evidence that the discussion was in relation to the filing of this or any other grievance. In fact,-,we only heard that she raised the issue. There was insufficient evidence to allow us to decide that the matter had been raised in a fashion that would put the Employer on notice that she intended to carry the matter through the grievance procedure. Such ‘a vague recollection’ of the issue of her return to work does not convince us to find that. the Employer was put on notice that the grievor’s return to work was an unresolved matter. A g-rievvce had not yet been Bled in the fall of 1992. Further, we heard that there was discussion’between the \ : ‘C’ grievor and Mr. McDermott about her return to work and, for whatever reasbn;,r# iwas _ f. .,I- de&led that a grievance would not be filed at that time. Additionally, there was evidence of a meeting held to discuss the issue of Ms. Pound’s return to work during which an adjudicator from the Worker’s Compensation -Board was present. The grievor was ‘- returned to work shortly after this meeting. It is therefore not surprising that once the : issue was raised, dealt with and not raised again, the Employer would believe the matter was no longer in dispute. ,,-- ! .’ /---- ;’ \ . . : 13 The grievance procedure is to ensure that employees within the bargaining unit have a vehicle that facilitates the raising and handling of complaints in an orderly fashion. Many c grievances are resolved at the first opportunity in the grievan& procedure, that-is, at the point when an employees informs her immediate supervisor of her complaint. Occasionally, it is necessary for matter to continue through the process and be negotiated to a resolution by the parties. Obviously, there are also occasions when the parties cannot resolve that matter and third party intervention is necessary to determine the dispute. It is trite to say that- the entire process is predicated, on the Employer, indeed, I j both parties, being informed about the nature and full extent of the complaint or alleged _ violation of the collective agreement if. it is to resolve the matter. The grievance procedure cannot be bypassed. To find that the first grievance encompassed the.@sue of the grievor’s return to work would allow the Union to circumvent the process and 2 , ..i /I, _.. / would be counterproductive to labour relations between the parties. I In the instant case, according to the evidence heard, neither the grievance form itself, the . grievor nor the Union informed the Employer that the nature of the dispute included an allegatio,n that the grievor ought to have been returned to work at an earlier time. This is not an insignificant matter. , i We do not accept that it was not raised at the grievance meeting because they “just didn’t get, to it”. Again, if it was a matter to. be considered as part of the dispute, it would have 14 or should have beenclearly set out. The purpose of a meeting’ held during the course of the grievance procedure is to attempt to resolve the dispute. In order’to resolve a matter, the parties must make clear the extent of the differences between them. While we accept that there may be times when details are omitted or forgotten, we cannot accept that so fundamental an issue would have been left unsaid if it were part of the dispute. The grievor conceded that, had she been paid benefits properly, then she would not have ’ filed any grievance. While this comment was not determinative of the matter we did take P it into account. The Union suggested that a request to make the grievor whole in all respects includes just ._. _-I such an inference. we do not agree. Our decision in this regard might have been different ifthere had beeni at some point prior to the first day of the arbitration hearing, discussion betvveen the parties, on the issue. That takes us’ to whether the grievance dated October 13, 1994’is timely or,.in the event - it is .out of time, whether we will exercise our discretion to extend the time limits. The Union suggested that the grie.vor first became aware that she ought to file a separate . . grievance regarding her return to work on the first day of hearing into this matter and she, promptly filed the grievance. She became subjectively aware of her rights at that point. Again, we must disagree. I evidence of the grievor was clear that she had a discussion with Mr. McDermott from the Union in the spring of 1992 that she could file a grievance regarding her return to work She testified that they decided to speak with the eployer and make other attempts to deal with the matter. It is difficult to reconcile that evidence with the suggestion that the grievor first became subjectively aware of her right to, grieve in October of 1994. Therefore, we find that ‘the grievance has been’ filed outside of the time limits set out in ‘, the collective agreement. i / We are left with a consideration .ss to whether to exercise our discretion under Section 45 (8) (3) of the Labour Relations Act, RS.0. 1990, c.L-2, to extend the time limits in the collective agreement and allow the grievance, to be heard on its merits. The parties provided the Board with jurisprudence regarding the appropriate considerations in these \ circumstances. We first look to the nature of the grievance in our determination. This is not discipline which would affect the grievor for a considerable period: Nor is it an -I / ongoing matter where, for example, the grievor will be improperly compensated on a continual ‘basis. \ There~was no evidence of actual prejudice. The Union argued that the fact of a delay is _ not sufficient prejudice, in and of itself. We agree. If. that were the case, boards of arbitration would virtually never be in a position to extend the time limits. Further, there -was no evidence before this Board that the Employer would be otherwise prejudiced. It ’ was suggested-that a finding in favour of the grievor could prove costly for the Employer. We are of the view that this is not an appropriate consideration in determining whether to extend the time limits in the instant matter. I It was submitted by the Employer that to allow the time limits to be extended and hear the grievance on its merits circumvents the grievance procedure. On this point, we must agree. There are no reasonable grounds-to extend the time limits in this case and, in fact, there are sign&ant reasons to refrain from doing so. We would. be very concerned about what labour relations message would be sent if we extended the time limits in these circumstances. Effectively, the parties would be told that in those instances where a new or collateral matter was not raised during the grievance procedure, it could be elevated to the level of an issue properly in dispute on the day of the arbitration by the filing of a new grievance. The process set out in the collective agreement is one that the parties have agreed to and for good reason. While there are numerous occasions’ when it makes labour relations-sense to not hold rigidly to that process, this is not one. .’ . For those reasons we uphold the Employers preliminary objections. We will re.convene to dealwith whether the collective agreement has been violated by the Employer’s denial of benefits to the grievor. I? Dated in Toronto, this1 st day of August, Employer Member ’ _ ,’ / '/ I. / L 'I'HOMSON Union Memk