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HomeMy WebLinkAbout2013-3253.Union.14-05-21 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2013-3253 UNION#11-201 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Union) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Marilyn Nairn Vice-Chair FOR THE UNION James McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Greg Bullen Workplace Safety and Insurance Board Counsel HEARING May 13, 2014 - 2 - DECISION [1] The employer has raised a preliminary objection as to the scope of the grievance before the Board. This decision deals only with that issue. The grievance is scheduled to proceed to mediation on June 3, 2014. The parties filed an agreed statement of fact that provides: WHEREAS, the Employer and the Ontario Compensation Employees Union (“OCEU”) are parties to the Collective Agreement for all bargaining unit employees; AND WHEREAS the Union filed grievance number 11-201 pursuant to Article 12 of the Collective Agreement; NOW THEREFORE, the parties agree to the following facts: 1. The Grievors all suffered compensable injuries and received benefits under the Workplace Safety and Insurance Act. 2. The Grievors are all totally and permanently disabled and it has been clear since at least October 2011 that none of them will ever be able to return to work in any capacity. 3. At an October 29, 2010 discussion, Rod Cook, then one of the Employer’s Human Resources Business Partners, had a discussion with the Union’s Tony Dinardo. Dinardo sent an email dated November 1, 2010 to fellow union officers in which he recounted that conversation. Dinardo did provide Cook a copy of the case referred to in the email of November 1, 2010 [Tab 1] 4. In between the meeting of October 29, 2010 and the terminations in October, 2011, a new collective agreement was negotiated, which contained changes to the language of Article 21.02. 5. The Employer terminated the Grievors’ employment in October, 2011, and termination letters were sent by registered mail to all of the Grievors. [Tab 2] 6. In a letter dated November 1, 2011, Gosselin wrote to Greg Coulson, the Employer’s Executive Director, Human Resources Division. [Tab 3] 7. Gosselin was invited to apply for a disability pension, which would have been an unreduced pension, but he did not do so, instead electing to take an early retirement pension, which was effective November 1, 2011, and which does include employee benefits. 8. On or about the time of the termination of their employment the Employer paid the Employees accrued attendance and vacation credits, but no payment was made in respect of either notice and/or no severance pay [sic]. 9. On December 2, 2011 the Union grieved the terminations. [Tab 4] 10. Throughout December 2012 there were a number of discussions between the Union and the Employer about the grievance. These discussions took place both orally and via email. At no time in these discussions did the Union ever take the position that the terminations themselves contravened the collective agreement. Attached are emails related to those discussions. [Tab 5] 11. In December, 2013 the parties agree[d] to have an internal mediation to discuss the grievance. Prior to the mediation the Union specifically confirmed that compensation, including benefits, was the only issue. 12. On December 17, 2013, the Union advised for the first time since the grievance was filed that severance pay was not their only issue and that they intended to grieve the terminations themselves and would be asking for reinstatement of the employees. - 3 - The Employer, on December 17, 2013 replied to indicate that the Employer objected to the inclusion of the terminations themselves as an issue and that this issue would be raised before the Grievance Settlement Board. [Tab 6] [2] As referenced, a number of documents were filed on consent. Those included copies of various e-mail exchanges between representatives of the employer and the union, an internal e- mail exchange between union representatives, the termination letters, an excerpt from the prior collective agreement, and the group grievance. The collective agreement was also filed. The case referred to in paragraph 3 of the agreed statement is a decision of this Board cited as Canadian Union of Public Employees, Local 1750 v. Ontario (Workplace Safety and Insurance Board), 2003 CanLII 52973 (ON G.S.B.) (the “Abramsky” award). [3] All of the grievors were employed by the WSIB. All are in receipt of LOE benefits to age 65. They are not expected to return to the workplace. The pension plan referred to at paragraph 7 of the agreed statement is the Workplace Safety and Insurance Board Employees’ Pension Plan, continued under the provisions of the Workplace Safety and Insurance Act. The grievor referred to at paragraphs 6 and 7 of the agreed statement of fact has filed an application with the Human Rights Tribunal that has been deferred pending the outcome of this grievance. * [4] It is the position of the employer that the union is attempting to change the nature and scope of the grievance. It asserts that the grievance deals only with severance pay and lost benefits, and that, two years after the filing of the grievance, the union seeks to assert that the grievors’ termination from employment violated the collective agreement. The employer noted that different sections of the collective agreement have now been raised as having been violated. It asserted that there is prejudice in its ability to present a case arising from the passage of time, both in terms of fading memory and the fact that certain individuals may no longer be employed and available. [5] The employer argued that no weight ought to be placed on a discussion between its representative, Mr. Cook, and the union’s representative, Mr. Dinardo, as having occurred a year prior to the terminations. It further argued that no weight ought to attach to a letter from Mr. Gosselin, one of the grievors, as it was not copied to the union and cannot be held as indicative of the union’s position. Also, argued the employer, that grievor raised an issue regarding benefits and subsequently took a pension that provided benefits, circumstances that could not be understood as informing the employer of the issues. The grievance, noted the employer, filed by a union representative, does not refer to reinstatement. It refers to the article of the collective agreement involving enhanced severance and the no-discrimination clause, suggesting that the latter is linked to the lack of severance. The union has now advised, noted the employer, that it will seek to rely on Articles 13, 21, and Appendix 2 of the collective agreement. The union cannot, argued the employer, rely on the ‘boiler plate’ language on the grievance form referencing “any other section” of the collective agreement if that results in a different grievance, as the employer is entitled to know the case that it must meet. [6] Subsequent discussions between the parties also inform what the grievance was about, argued the employer. In 2012, discussions were held regarding the amount of severance to be - 4 - paid. The union did not, argued the employer, disabuse the employer from its stated understanding that the grievance concerned the grievors’ entitlement to ESA payments. It was not until December 2013, two years after the grievance was filed, argued the employer, that the union indicated that it was seeking reinstatement for the grievors. Any discussion of benefits, argued the employer, was in addition to severance, but not related to the terminations as being allegedly unjust. [7] In response, the union first noted that there was no evidence of any prejudice to the employer. It noted that the Abramsky case, supra, was argued on the basis of limited and agreed facts similar to those before the Board here. It argued that context was important in order to understand the nature of the grievance. A year prior to the terminations, noted the union, the employer had sought out the union for its position should the employer act to terminate the employment of these permanently disabled employees. At that time, the union noted, the union advised the employer that it would likely take the same position under Article 21.02 of the collective agreement as in the Abramsky decision, supra. That decision resulted in a reinstatement to employment of employees terminated, with no expectation that they would ever return to active work. However, it was found, noted the union, that those employees, who were in receipt of LTD benefits, were entitled to the benefit of employment status in order to continue to receive other benefits under the collective agreement. A similar argument was available, argued the union, under Article 21.02 of the collective agreement for employees in receipt of LOE benefits. [8] Mr. Gosselin’s letter, noted the union, alleged a violation of the Human Rights Code (the “Code”). Article 23 of the collective agreement, cited in the grievance, noted the union, is the no- discrimination clause and expressly incorporates the protections under the Code. The employer was therefore, argued the union, on notice that a violation of the Code was being alleged. The redress sought by the grievance, noted the union, makes reference to severance and benefits and pension. The only way, argued the union, for an employee to receive health care benefits is if reinstated to employment. All of that, argued the union, is what the grievance is about. [9] The grievance, argued the union, did not assert that the grievors had been treated unjustly because of a denial of severance pay. The grievance, it noted, asserted that the employees had been treated unjustly “when the employer terminated employment due to ‘unemployable’ status”. It would be a major contraction of the grievance, argued the union, to say that the grievance only concerned severance pay. [10] The union discounted the e-mail exchange as reflective of attempts to resolve the grievances. Those discussions refer to severance pay but also benefits, noted the union. It noted that all of those discussions pre-date any Step 2 grievance meeting. It was in the context of a planned mediation that the union clarified its position, argued the union. The union stated its position on the merits as analogous to its argument in the Abramsky decision and noted its further position that if an employee was not able to return to work because of a work-related injury and did not have the same right to continued employment as an employee in receipt of LTD benefits, that differential treatment was in violation of the Code. In the alternative, the union noted, it would argue that these employees were entitled to enhanced severance, not simply severance as provided by the ESA. - 5 - [11] Should the Board find that the scope of the grievance was narrower than it alleged, the union, as an alternative position, sought leave to amend the grievance, referring to the decisions in Anco Contracting and Electrohome, both infra. [12] In reply, the employer noted that since any conversation regarding the Abramsky decision the parties had negotiated a new collective agreement that had made changes to Article 21.02 and therefore any statement of the union’s position at the time would require an unreasonable assumption on the employer’s part. To the extent that the grievance cited discrimination, argued the employer, it was in reference to the amount of severance pay owing. There was nothing in the facts, argued the employer, to suggest that the only way to receive benefits was following reinstatement to employment. There was therefore nothing to suggest to the employer that reinstatement was a necessary feature of the grievance. There was prejudice, argued the employer, as it was required to proceed first and would require evidence regarding entitlement to and or receipt of benefits by the grievors, giving rise to additional evidentiary issues. This was not simply a different remedy being requested or a different legal argument being advanced, argued the employer. Weight must be given, argued the employer, to the e-mail exchange wherein the union confirmed that compensation was the only issue in the grievance. * [13] The employer referred to the following cases: Blouin Drywall Contractors Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 2486, [1975] O.J. No. 31 (C.A.); Electrohome Ltd. v. International Brotherhood of Electrical Workers, Local 2345 (Seniority Grievances), [1984] O.L.A.A. No. 5 (Rayner); Cold Springs Farms Ltd. v. Cold Springs Farms Employees’ Assn, Local 100 (Jack Grievance), [2000] O.L.A.A. No. 278 (Goodfellow); Municipal Property Assessment Corp. v. OPSEU (Seniority Grievance), [2008] O.L.A.A. No. 647 (Albertyn); Greater Sudbury Hydro Plus Inc. v. Canadian Union of Public Employees, Local 4705 (Armstrong Grievance), [2003] O.L.A.A. No. 542 (Dissanayake); OPSEU v. Ontario (Ministry of Labour) (Jones Grievance), [2010] O.G.S.B.A. No. 95 (Abramsky); and OPSEU v. Ontario (Ministry of Children and Youth Services) (Rafol Grievance), [2013] O.G.S.B.A. No. 40 (Dissanayake). [14] The union referred to the following cases: Enbridge Gas Distribution Inc. and C.E.P. Local 975, (2006), 150 L.A.C. (4th) 225 (Burkett); Re Blouin Drywall, supra; Anco Contracting Inc. [2014] CanLII 18886 (ON LRB); City of Toronto and CUPE, Local 79 (Hoffman Grievance), [2009] CanLII 91244 (ON LA) (Nairn); Re Hostess Frito-Lay Company and United Steelworkers of America, Local 4610 (Lapointe), (2002) 111 L.A.C. (4th) 76 (Gorsky); TDSB and CUPE Local 4400 (Preliminary Award, Group Grievance Atyeo et al., unreported decision of Knopf dated March 31, 2014; and Daybar Industries Ltd. and USWA, Local 9042, (2012) 223 L.A.C. (4th) 126 (Knopf). [15] There is little dispute as to the principles applicable to the issue. At issue is how to apply those principles to the circumstances in this case. One begins with the comments of the Ontario Court of Appeal in Blouin Drywall, supra: 10 …but these cases should not be won or lost on the technicality of form, rather on the merits and as provided in the contract… - 6 - 11 …Certainly the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions. [16] The decision in Electrohome Ltd., supra, notes at paragraph 14 that the approach must be flexible in order to accommodate two values. Technical objections as to the scope of a grievance would compel parties to draft their grievances with the nicety of pleadings in circumstances where the parties are not operating under the same rules of practice that would guide normal litigation. On the other hand, if the issue raised is not inherent in the original grievance, to allow it to be raised at arbitration would be to deny the parties the benefit of the grievance procedure to attempt to resolve the issue themselves, resulting in the substitution of a new grievance for the original grievance. [17] And in Re Enbridge Gas, supra, at page 227, the arbitrator stated: …in dealing with a challenge to the scope of a grievance…it is important to distinguish between the claim and the remedies that might follow…a grieving party is not permitted to alter or expand the claim that is made in the grievance…However, as a general proposition, a grieving party is free to make full legal argument in support of the claim made in the grievance and to seek full redress should it succeed on its claim. [18] How then to apply those principles to the facts at hand? [19] The Abramsky award in 2003 found that this employer could not terminate the employment of the grieving employee, who was in receipt of LTD benefits. It was found that that collective agreement specifically provided for the continuation of certain benefits while on LTD. This was so, notwithstanding that there was no expectation that the grievor in that case would ever return to the workplace based on her permanent disability. The Board stated at page 6 of that decision: …the employer’s right to terminate an employee for innocent absenteeism depends on whether the dismissal deprives the employee of continued access to a negotiated benefit specifically tied to the illness or disability. [20] It was found in that case that to deprive the grievor of employment status would deprive her of benefits that the employer had, under the terms of that collective agreement, agreed to continue for so long as she was in receipt of LTD benefits. Those benefits were Group Life and Dependent Life Insurance and vacation and attendance accrual. That decision did not deal with employees permanently in receipt of WSIB LOE benefits. [21] At the hearing the union advised that it seeks to argue that, by analogy, the employer cannot terminate the employment of these grievors. It similarly seeks an order of reinstatement to employment, recognizing that these grievors will not return to active employment. It points to Articles 21.02(b) and (c) of the collective agreement as providing negotiated salary and vacation credits specifically tied to the receipt of WSIB benefits and therefore requiring continued employment status in order to continue receiving those alleged benefits. - 7 - [22] Alternatively, the union seeks to argue that should these grievors not have the same right to continued employment as afforded under this collective agreement to employees in receipt of LTD benefits, such constitutes inappropriately differential treatment contrary to the Code. [23] The collective agreement as it applied to employees on LTD was changed in 2002 but not for purposes of the Abramsky decision as that grievor was in receipt of LTD benefits prior to the amendment. That change in Appendix 3 (now Appendix 2) of the collective agreement limits the accrual of attendance and vacation credits to the initial two-year “own occ” portion of the LTD benefit. Since 2003 the collective agreement has been further amended. Effective January 1, 2012, the current collective agreement provides for short term disability coverage as opposed to the accrual of attendance credits. These grievors received payment in respect of their accrued attendance credits to the date of termination in October 2011. Article 21.02 (b) has been amended so as to expressly recognize that compensation “advances” shall continue only “for so long as the person remains an employee” of the WSIB. Article 21.02(c) has been amended to eliminate reference to the accrual of attendance credits. I am unaware at this point whether other changes have been made to Appendix 2 of the collective agreement regarding benefits. The provision at issue before Abramsky relating to Group and Dependent Life Insurance coverage for those in receipt of LTD benefits remains. [24] Essentially, the union seeks to argue that these grievors would be deprived of continued access to a negotiated benefit tied to the receipt of WSIB benefits or would be subject to differential treatment contrary to the Code should they not be permitted to retain their employment status. In the alternative they seek enhanced severance payments for each of the grievors. [25] Are these issues inherent in the grievance filed? As noted in OPSEU v. Ontario (Ministry of Children and Youth Services) (Rafol Grievance), supra, the test is an objective one. [26] The grievance alleges that the grievors “have been treated unfairly when the employer terminated employment due to ‘unemployable’ status”. In the normal course, such an allegation would reasonably place the decision to terminate employment in issue. As noted by the union, the grievance does not assert that the grievors have been treated unjustly due to a failure to pay severance pay. No mention of the just cause provision in the collective agreement is made on the grievance form. Article 6 referred to, is a clause titled Organizational/Technological Change, and provides for enhanced severance pay. Article 23 of the collective agreement is identified. It is the no-discrimination clause, which expressly incorporates the provisions of the Code. [27] Looking to remedy is often a good indicator of what a grievance is really about. In this case, the remedies requested are potentially contradictory. One is a request for severance pay, a payment made only at the cessation of employment, and one that would not contemplate continued employee status. The other remedial request is for health care benefits “if gap or inability via pension/disability pension”. That remedy arguably contemplates continued employment in order to continue to receive health care benefits if otherwise unavailable through ‘post-employment’ means. Appendix 2 of the collective agreement, the benefits plan provision, is not referenced in the grievance form. However, in the case of a termination from employment, a remedial request for all lost wages and benefits would not typically reference those other provisions of the collective agreement. Similarly, the union seeks to point to Article 21.02 of the - 8 - collective agreement to identify the benefit. Fundamentally, however, it remains the act of terminating employment that causes the alleged damage of denying that asserted benefit. [28] Thus, the grievance form identifies the termination of employment as the triggering action violating the collective agreement. The remedies requested are potentially contradictory; one clearly not raising any issue of continued employment and the other, arguably doing so. [29] Much of the evidence makes clear that this grievance did not proceed through the grievance process set out at Article 12 of the collective agreement. The e-mail correspondence occurred between representatives prior to the holding of a Stage 2 meeting, notwithstanding the passage of time between the filing of the grievance and those communications. There is no evidence of a Step 2 meeting. At no time in their discussions did the union take the position that the terminations contravened the collective agreement. The e-mail communications focus on the issue of severance pay, although there is ongoing reference to a separate issue involving “benefits”. [30] Prior to an internal mediation to discuss the grievance, the union confirmed that “compensation, including benefits”, was the only issue. Although the words “reinstatement to employment” were not used, seeking a remedy for benefits as part of a grievance is generally an assertion that the employer is responsible for the provision of those benefits, an assertion that would typically imply an employment relationship. The Abramsky decision at page 5 notes the union’s argument in that case that “compensation” included the life insurance and vacation and attendance credit accrual being sought in that case. [31] Nor are the benefits being sought ever identified, although in the e-mail communications, they are consistently referred to separately from severance pay. In that regard I have difficulty reconciling paragraph 12 of the agreed statement of fact with the e-mail communications. Those communications clearly reference benefits as a separate issue, particularly as it affects one grievor, but gives no indication of the substance of that claim. [32] Can it be said that the employer could reasonably have understood the issue of continued benefits to form part of the grievance? That reference is express on the face of the grievance. Can it be said that the employer could reasonably have understood that such a request implied an ongoing employment relationship? Given the limited exchange between the parties it may be difficult to say what an employer could reasonably have understood. However benefits continued to be identified as an issue in the grievance throughout the parties’ discussions. [33] The employer understood that the sole issue in the grievance was compensation. The union agreed. The employer indicated that that issue was limited to a question of “ESA vs. Article 6” severance pay. However, based on the evidence before me, the employer was also aware throughout that the grievance identified a remedy that included benefits (note paragraph 11 of the agreed facts) and that the union had made, and continued to make an independent claim for benefits. Any discussion of the nature of that claim was not identified in the evidence (its scope appeared to be limited to one grievor) and so I am unable to draw any conclusion that the nature of that claim was limited. The parties appear to have had a different view as to what was encompassed by the term ‘compensation’ and, as a result, never got to a discussion of how that compensation was rooted in the collective agreement. - 9 - [34] With respect to the application of Article 23 of the collective agreement and any issue arising under the Code, the e-mail communications do confirm that the union was asserting that the failure to pay severance pay was discriminatory. The earliest communication references the Ontario Court of Appeal’s decision in ONA v. Mount Sinai Hospital, a decision that found a provision of the Employment Standards Act denying severance pay to be unconstitutional as it inappropriately discriminated against those whose employment contracts were frustrated due to disability. The e-mail communications suggest that the union was prepared to resolve the grievance on the basis of the payment of severance pay. However, there was a further exchange regarding the appropriate calculation of severance, the union taking the position that enhanced severance under Article 6 of the collective agreement was appropriate, not merely severance entitlements under the Employment Standards Act. In that regard, the union also alleged that to pay less than that set out in Article 6 of the collective agreement would be discriminatory. [35] Was Article 23 of the collective agreement irrelevant to the claim for benefits? I am unable to go so far as to draw that conclusion based on the evidence before me. The limited information at the employer’s disposal included a statement by the union, albeit a year earlier, that the union’s position regarding the termination of employees in receipt of permanent LOE benefits would likely be the same as the position taken by the union in the Abramsky award regarding employees’ continued employment status while in receipt of LTD. That decision related to continued access to certain benefits, notwithstanding that the grievor in that case was not expected to return to active employment. The grievance form included a remedial request for continued health care benefits from the employer if otherwise unavailable through other means, and referenced the terminations from employment, not simply a failure to pay severance pay. [36] None of the cases to which I was referred capture similar circumstances. Cold Springs Farms Ltd., supra, is distinguishable. In that case, the grievance alleged sexual harassment and a failure to accommodate. At the hearing the union attempted to allege an improper lay-off and/or failure to recall. Similarly, in Greater Sudbury Hydro Plus Inc., supra, the grievance alleged that the grievor’s position had been contracted-out and that she had been denied bumping rights. At the hearing the union sought to argue that the grievor had been demoted. In OPSEU v. Ontario (Ministry of Labour) (Jones), supra, the grievance alleged that the imposition of a quota of a minimum number of files was an “unfair workload” that had “no basis for justification as a performance measure and cannot be sustained over a prolonged period of time”. Although finding that it was arguable that a health and safety issue had been raised during the first step of the grievance process, the Board concluded in that case that, subsequently, when the grievance was put in writing and presented there was nothing that might reasonably be construed to include a health and safety issue. I have no evidence of formal grievance procedure discussions. The e- mail communications before me can at best be described as informal discussions between the parties’ representatives that focus on the payment of severance as a means of resolving the grievance, while continuing to refer to “an issue regarding benefits”. [37] In Municipal Property Assessment Corp., supra, the grievances concerned the grievors’ start dates for purposes of seniority. The factual underpinning concerned the calculation of each grievor’s continuous temporary and permanent service. At the hearing the union sought to rely on certain ‘roll-over’ provisions that acted to convert temporary employee status to regular employment in certain circumstances. At paragraph 9 of the decision, the arbitrator found that - 10 - reliance on the ‘roll-over’ provision would “support an independent breach of the collective agreement and provide an entirely separate basis for relief”. Here, the alleged breach continues to be an allegation that the grievors were treated unjustly when the employer terminated their employment. [38] I am unable to conclude that there is prejudice to the employer in allowing the union to proceed with its claim under the grievance. It is not apparent that the evidentiary issues would be significantly, if at all, different, although the legal issues are broader than that initially understood by the employer. In the circumstances, I am prepared to entertain a motion that the union ought to proceed first, regardless of where the legal onus may rest at the end of the day. [39] Having regard to all of the above, I am not persuaded that the union’s indication that it was seeking reinstatement of the grievors to employee status constitutes a change in the nature and scope of the grievance. The grievance asserts unjust treatment as a result of being terminated from employment and makes the terminations the focus of the claim. The issue of employee status is also inherent in a claim for benefits being sought from an employer, a claim that the grievance makes. While the focus of the parties’ discussions concerned severance pay, the issue of benefits was also identified throughout those discussions. As I have no evidence as to how that claim was identified, I must rely on the evidence that includes the wording of the grievance and the discussions between the parties regarding the Abramsky decision, both referring to benefits. [40] The preliminary objection is therefore dismissed. Dated at Toronto, Ontario this 21st day of May, 2014. ___________________________________________ Marilyn A. Nairn, Vice-Chair.