HomeMy WebLinkAboutUnion 15-03-17IN THE MATTER OF THE ONTARIO LABOUR RELATIONS ACT, 1995
AND IN THE MATTER OF AN ARBITRATION
B E T W E E N :
THE CORPORATION OF THE COUNTY OF SIMCOE
(“the employer”)
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ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 303
(“the union”)
AND IN THE MATTER OF a union policy grievance, dated June 10, 2013, and a series of
individual grievances, alleging that the employer had improperly imposed a cap on Short
Term Disability payments
BEFORE: John McNamee, Sole Arbitrator
APPEARANCES: For the Employer:
Phil Wolfenden (Counsel)
For the Union:
Robin Lostracco (Grievance Officer)
Hearings in this matter took place at Barrie, Ontario, on October 7, 2014, 2014 (mediation only)
and on December 18, 2014, following which the parties filed a series of written submissions.
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A W A R D
These parties disagree as to whether their collective agreement, which covers a bargaining unit
of paramedics, properly permits the Short Term Disability (“STD”) benefits provided for in the
agreement to be capped at $850.00 per week. The union asserts that Article 26.04(e) governs:
26.04 Full-time Employees
The Employer agrees to pay one hundred percent (100%) of the billed premium towards
the premium coverage of eligible full-time employees in the active employ of the
Employer under the insurance plans set out below subject to their respective terms and
conditions including any enrolment requirements.
(e) Short Term Disability (seventy-five percent (75%) of weekly salary to a
maximum of seventeen (17 weeks)).
The employer says that the application of Article 26.04 is subject to two other provisions of the
agreement:
26.01 Particulars of the Employer’s Current Benefits Program are set out in an
individual booklet provided to each affected employee. The employer agrees to make
available during the term of this Agreement the benefits and level of coverage as set out
therein.
26.02 It is understood and agreed that…the exact coverage and payment of such benefits
is governed by the terms of the particular policies of insurance in effect from time to time
with a carrier…”.
The benefit booklets do refer to a STD cap of $850 per week.
In addition to its position on the merits, the employer says that all of the grievances are untimely
and should be dismissed. This award will deal with the timeliness issue only.
Both parties agree that I have jurisdiction to determine this matter. Neither party called viva
voce evidence, preferring to rely upon the documentary evidence filed.
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Positions of the parties
The employer asserted:
1) The current collective agreement between the parties had its antecedents in an
agreement between the union and Health Trust Pre-Hospitals Services Inc. It filed a
copy of the collective agreement between those two parties which took effect on July
6, 2001, and expired on July 5, 2004, and said that all of the relevant language of that
collective agreement survives, essentially unchanged, until the present day.
2) The employer also filed a copy of two different benefit booklets issued pursuant to
the Health Trust Pre-Hospitals Services Inc. agreement. The earlier booklet refers to
an STD cap of $700 per week, and the later booklet, which was effective on October
1, 2002, refers to an STD cap of $850.00.
3) The employer said that these booklets clearly establish that the current grievances are
untimely. It argued that any grievance should have been filed in 2002 against Health
Trust Pre-Hospitals Services Inc. because the booklets clearly establish that there was
an STD cap at that time, and that the union could not therefore rely upon Article
26.04(e).
4) Further, the employer said, when it brought paramedical services back in house in
2004, it contracted with the Co-Operators Group for an insurance policy which was in
all relevant respects identical to the Co-Operators policy with Health Trust Pre-
Hospitals Services Inc. Both of these policies referred to a $850 per week STD cap.
Furthermore, when the employer moved the insurance policy from Co-Operators to
Acclaim effective September 1, 2004, the same cap was reflected in the new policy.
In furtherance of the change in insurance carriers, the employer wrote the then
president of the union on August 12, 2004 to advise that “…the new carrier shall
continue to provide the same level of benefit coverages now enjoyed by your
members…”.
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5) The employer also said that, in February, 2005, the union must have known there was
an STD cap because the OPSEU Joint Trusteed Benefit Fund wrote to the employer’s
benefit consultants to quote on the employer’s insurance contract with respect to the
bargaining unit covered by the collective agreement. That quote included a term for
STD insurance at 75% of earnings to a maximum of $850.
6) Further, and in the alternative, the employer said that, in the course of these
proceedings, the union produced to it a copy of an employee benefit booklet dated
December, 2008, which had been issued to one of the current union officials, and
which contained a reference to a $850 weekly cap on STD benefits. This booklet, the
employer said, fixed the union with knowledge of the cap no later than early 2009.
7) The employer also noted that the collective agreement has been renewed three times
since it took over from Health Trust Pre-Hospitals Services Inc., and that it is
currently in negotiations for a fourth renewal. Despite this lapse of time, it said that
no grievance on this issue was filed until May, 2013.
8) The employer relied upon the following provisions of the collective agreement:
12.02 – Time Limits and Time Computation
Time limits are mandatory for all steps of the entire Grievance and Arbitration process
unless the Union and the Employer, or in the case of Arbitration the nominees or counsel
agree in writing to extend the time limits. The date of submission of any complaint or
grievance or the giving of any notice or decision shall be excluded from the computation
of time.
12.06 – Policy Grievances
When a dispute involving a question of general application or interpretation occurs
(including an Employer grievance) or when the Union has a grievance which cannot be
made the subject of an individual grievance, the grievance shall be filed at Step 2 within
thirty (30) days of the affected party becoming aware of the circumstances that gave rise
to the grievance.
12.07(b) If an employee has a complaint, he/she shall discuss it with his/her
immediate supervisor within ten (10) calendar days after the circumstances giving rise to
the complaint having originated or occurred or within ten (10) calendar days of when the
complainant ought to have reasonably become aware of the circumstances giving rise to
the complaint.
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12.10 No matter may be submitted to arbitration, which has not been properly carried
through all requisite steps of the grievance procedure.
12.11 The Board of Arbitration shall not have any power to amend, alter, modify or add
to any of the provisions of this Agreement or to substitute any new provisions for any
existing provisions, nor to give any decision inconsistent with the terms and provisions of
this Agreement.
12.15 The time limits set out in both the grievance and arbitration procedures herein
are mandatory and failure to comply with such limits, except by the written agreement of
the parties, shall result in the grievance being deemed to have been abandoned subject
only to the provisions of s. 48.16 of the Labour Relations Act or as amended from time to
time. Such time limits shall exclude Saturdays, Sundays, and paid holidays.
9. The employer asserted that this language, which has remained essentially
unchanged throughout the years, indicates a strong preference on the part of the parties
that a grievance should be dismissed when the mandatory time limits have not been
followed, and submitted that the grievance should have been filed in 2002 but, at the very
least by early 2009, since the union must be deemed to be clearly aware of the STD cap
which was set out in the benefit book dated December, 2008.
10. The employer also said that Article 12.15 should be interpreted to prevent an
arbitrator from exercising discretion under s. 48(16) of the Labour Relations Act, 1995 .
In the alternative, it says that, even if my discretion under that section is not excluded, I
should not exercise that discretion because the union has not offered any clear and
convincing grounds for the extension of time limits following so long a delay; but also
because, in the absence of a grievance, the employer has suffered prejudice by reason of
its actions in bringing the paramedical service in house as it did in 2004, and in self-
insuring the STD plan as it did some time thereafter.
11. In support of its positions, both that the grievance(s) is/are out of time pursuant to
the collective agreement, and that the exercise of discretion under s. 48(16) of the Act is
inappropriate after such a delay, the employer relied upon Dufferin-Peel Catholic District
School Board and The English Catholic Teachers’ Association, 2012 CarswellOnt12463
(Chauvin) (also cited as [2012] O.L.A.A. No. 516 and 112 C.L.A.S. 130); Ottawa-
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Carleton District School Board and E.T.F.O., 2011 CarswellOnt 15556 (R. Brown) (also
cited as 109 C.L.A.S. 197); Peel Regional Paramedics Services and O.P.S.E.U., Local
277 (Gorzynski), 2014 CarswellOnt 11166 (Marcotte) (also cited as [2014] O.L.A.A. No.
319 and 119 C.L.A.S. 329); and The Corporation of the City of London and the London
Civic Employees’ Local Union 107, 2011 CarswellOnt 12119 (Snow) (also cited as 109
C.L.A.S. 136).
The union submitted that:
1. The issue did not crystallize, and a grievance was therefore premature, until some
time in 2011 at the earliest. It provided a copy of a letter from the employer’s Claims
Manager to the employer in which the Claims Manager admitted that, up until May 4,
2011, STD claims had been paid without reference to, and in excess of, the cap. The
Claims Manager described the cause of these extra-cap payments as being a clerical
error.
Further, the union said, even after the cap was applied there was no notification to the
union until, in January, 2013, it sought clarification from the employer as to why
retroactivity had not been paid on STD benefits. Thereafter the employer sent the
union an email on February 26, 2013, in which it set out, for the first time, its
understanding, that the cap was applicable. The parties spent then some time in
discussions regarding potential resolutions before the first grievance was filed in
May, 2013.
2. Unlike the situation in the authorities cited by the employer, the concern here is an
interpretation issue with broad implications to the entire bargaining unit as opposed to
a “one off” individual grievance;
3. The issue in this matter is a continuing grievance, whereby a fresh breach of the
collective agreement occurred each time that a capped STD payment was made;
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4. In the alternative, a failure of time limits is a procedural defect only, and that the
employer had waived any right to object to timeliness by its failure to object on that
basis until after it had taken a fresh step, i.e. having participated in the appointment of
an arbitrator, and until the second scheduled day of hearing between the parties; and
5. Article 12.15 of the collective agreement expressly preserves an arbitrator’s right to
extend time limits under s. 48(16) of the Act, and that the union had advanced a
reasonable basis for any delay in that the employer had made STD payments, without
reference to any cap, until May, 2011, and that, thereafter, the union was not notified
that the cap was being applied until February, 2013. The union further argued that
there had been no prejudice to the employer, which had been able to produce
documents bearing on the case dated as far back as 2001. It also said that there is no
evidence that the cap (if one exists) was a factor in the employer bringing
paramedical services in house, or in deciding to self-insure the STD plan. If there
was any prejudice, the union said, it could be compensated for in damages;
6. Most of the documents relied upon by the employer to establish that a cap existed
(including the insurance policies) had never been shared with the union, whereas
others, like the letter of letter of August 12, 2004, did not refer to the existence of a
cap. With respect to the letter from the OPSEU Joint Trusteed Benefit Fund in
February, 2005, the union said that Fund was a separate legal entity from itself, and
there was no evidence that the union ever received a copy of that letter;
7. With respect to the benefit booklets, the practice of paying the STD at 75% without
reference to a cap for the period from 2002 until 2011 led the union to believe that the
benefit books did not accurately describe the STD plan, and that the provisions set out
in the collective agreement governed.
8. The union relied upon Re OPSEU and Sault College (Piotrowski grievance), [2006]
O.L.A.A. No. 568 (Howe); Re St. Michael’s Hospital and SEIU, Local 1 (2012), 215
L.A.C. (4 th ) 366 (Schmidt) (also cited as [2012] O.L.A.A. No 79 and 109 C.L.A.S.
246); Re Falconbridge Ltd., Sudbury Smelter Business Unit and USWA, Local 6855
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(2002), 112 L.A. C. (4 th ) 243 (Shime); Re North York General Hospital and ONA,
[2014] O.L.A.A. No. 153 (McNamee); and Re Greater Essex District School Board
and OSSTF (Compensation Grievance), [2014] O.L.A.A. No. 530 (Albertyn).
ANALYSIS
The employer contended, and the union did not seriously disagree, that the time limits set out in
Article 12 of the collective agreement are mandatory. Indeed, Articles 12.02 and 12.15 admit of
little disagreement on that issue. Both articles speak explicitly to the requirement that the time
limits must be followed unless by mutual consent set out in writing, and (with respect to Article
12.15) the agreed upon consequence that a grievance which is not filed and processed in
accordance with the time limits shall be “deemed to have been abandoned”.
Accordingly, I agree with the employer that the grievance procedure contains mandatory time
limits. I further agree that the policy grievance filed in this matter was filed outside of those time
limits. On the view of the facts most favourable to the union, it knew from the February 26,
2013 email that the employer was taking the view that the $850 per week cap applied, which
would mean that the 30 day time limit set out for policy grievances in Article 12.06 would expire
prior to the end of March, 2013. This is not a case wherein the union could consider the
employer’s position to be an anticipatory breach, as was the case in Re OPSEU and Sault
College (Piotrowski grievance) (supra), because the employer, to the knowledge of the union, at
least by January, 2013, had not been paying the full 75% of salary to employees on STD for
some time (and perhaps more than two years) previously.
However, that finding does not end the matter for a number of reasons:
a) The union has argued that waiver applies and that these are continuing grievances.
Further it has asked me to exercise my discretion under s. 48(16) of the Labour
Relations Act, 1995 ; and
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b) At least some of the individual grievances which have been filed relate to
circumstances wherein the commencement of the STD claim post-dated May, 2013.
Thus, whether or not each individual weekly payment constitutes a new cause for a
grievance, the union’s argument with respect to the crystallization of the claim has
additional force in respect of a fresh claim for benefits which only commenced in
2013 or thereafter. I have no reason to believe that all of those claims and any future
claims which are consolidated with prior individual grievances and the policy
grievance are/will be all of out of time.
In light of the above, I have opted to decide the timeliness issue of all of the grievances before
me on the basis of s. 48(16) of the Act, but without any determination at this stage as to whether
it might be appropriate to grant damages (if the union is ultimately successful on the principle)
with respect to any individual claim.
In so saying, I do not agree with the employer that Article 12.15 of the collective agreement
precludes my discretion to extend grievance procedure time limits under the Act. That article
provides that “the time limits set out in both the grievance … procedures herein are mandatory
and failure to comply with such limits…shall result in the grievance being deemed to have been
abandoned subject only to the provisions of s. 48(16) of the Labour Relations Act …”.
The last part that sentence indicates clearly that the deemed abandonment of the grievance is
subject to s. 48(16) of the Act, which reads as follows:
Except where a collective agreement states that this subsection does not apply, an arbitrator or
arbitration board may extend the time for the taking of any step in the grievance procedure under
a collective agreement, despite the expiration of the time, where the arbitrator or arbitration board
is satisfied that there are reasonable grounds for the extension and that the opposite party will not
be substantially prejudiced by the extension.
The use of the words “subject only” as employed in Article 12.15 indicate to me that, as an
exception to the general principle set out in the article, the intention of the parties was to permit
an arbitrator to relieve against the deemed abandonment of a grievance where there are
reasonable grounds for the extension and where the employer (in this case) will not be
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substantially prejudiced thereby. If nothing else, I do not regard the language of Article 12.15 as
embodying a clear statement that s. 48(16) does not apply.
For the following reasons I further regard the circumstances of this case as being appropriate for
the exercise of my discretion to extend the time limits:
a) At a minimum, the actions of the employer’s Claims Manager in paying STD claims
in excess of the alleged cap until May, 2011, would indicate to the employees and to
the union that no grievance was necessary up until that time since payments were
being made at the rate of a full 75% of salary;
b) There was no notification to the union when the employer’s Claims Manager began to
apply the cap;
c) For at least a substantial portion of the period from May, 2011, until January, 2013,
the union reasonably believed that any short-fall from STD payments would be
compensated for in retroactivity pursuant to their newly negotiated collective
agreement;
d) When the employer’s stance did come to the attention of the union in January, 2013,
the union placed the employer on notice that it did not agree with that position. In the
circumstances, it was not at all unreasonable for the parties to discuss their
differences for a few months instead of proceeding immediately to invoke the
grievance procedure;
e) The employer did not raise any objection as to timeliness until December, 2014, long
after the matter had been referred to arbitration and an arbitrator had been appointed;
f) If the union’s interpretation of the collective agreement is ultimately correct, but it is
unable to present its arguments to that effect at arbitration, the collective agreement
will have been effectually amended;
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g) I am not convinced that there is substantial prejudice to the employer in extending the
time limits. The documentary evidence presented by the parties would appear to
constitute a complete record of the events as they unfolded since 2002, and I can see
no evidence that the costs to the employer would have been less if a successful
grievance had been filed in 2002, prior to the actions of the employer to bring
paramedical services back in house in 2004. In that regard, it seems clear that the
prior employer, Health Trust Pre-Hospitals Services Inc. was a form of alter-ego or
sub-contractor of the employer since the employer could make the determination to
bring paramedical services back in house. Thus Health’s Trust’s employment costs
must have been ultimately borne by the employer, whether or not the employees were
directly or indirectly employed, and whether or not an STD cap existed at that time.
I also have no reason to believe that the employer’s decision, made later in 2004, to
self-insure the STD benefits constitutes a form of prejudice since there is neither any
evidence, nor a logical reason, why the employer might have made a different
decision if it had known that the cap might not be consistent with the collective
agreement. Even if (for example) the employer had known that the cap did not exist,
the result would have been higher premium costs to Co-Operators if it had continued
that policy, or similarly higher self-insurance costs if it did not.
DECISION
In the result, and for all of the above reasons, the employer’s objection as to the timeliness of the
grievances is dismissed.
DATED at Toronto, this 17 th day of March, 2015
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John McNamee, Sole Arbitrator