HomeMy WebLinkAbout1988-0020.Bleach & Ronkai.89-02-27 ONTARIO EMPLOYES DE LA COURONNE
· . GROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE' C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
18(7 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8- SUITE 2100 TELEPHONE/T~:Lf"PHONE
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0020/88
IN THE MATTER OP AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (D. Bleach, Z. Ronka~)
- and -
The Crown ~n RiGht of Ontario
(Minist~y of Co~ectional Services)
Employer
Before: J,D, McCamus VSce-Chairperson
T, Kea~ney Member
D. Wallace Member
For the Griev01~: N. Wilson
Counsel
gow/inG & Henderson
Barriste~s_~ Solicitors
For the Employer: R.W. Little
Hicks Morley Hamilton Stewart Storie
Barristers &
Hearings: September 12, 1988
DECISION
This grievance arises from a dispute concerning the
entitlement to lieu days of employees whose work assignment would
have required them to work on a statutory holiday but who were
unable to do so because of a compensable work related injury with
respect to which they had made a successful Workers' Compensation
Board claim. Prior to August 5, 1987, it was the Employer's
practice to pay such employees only for the statutory holiday and
not to grant them lieu days in addition. As a result of two
decisions of the Grievance Settlement Board, however, Charbonneau
(544/81) and McDermid (366/86), which ruled that this practice did
not constitute a proper application of the Collective Agreement,
the Employer's policy was changed, effective August 5, 1987 so as
to ensure the granting of lieu days in such cases (Exhibit 3).
There is, therefore, no issue between the parties at the present
time with respect to the proper interpretation of the Collective
Agreement. The issue that has to be resolved with respect to the
two individual grievances in the present case relates to the
question of time limits.
A grievance brought on behalf of Mr. Bleach was filed on
January 24, 1988, and claims for lieu days for work assignments on
August 4, 1986, December 26, 1986 and January 1, 1987 (Exhibit 1).
The grievance brought on behalf of Mr. Ronkai was filed on January
15, 1988 and relates to a claim for May 21,-1984.
The Employer argues that these grievances have not been filed
in timely fashion, and places reliance for this proposition on
Article 27.2.1 of the agreement, which provides as follows:
· An employee who believes he has a complaint or. difference
2
shall first discuss the complaint with his supervisor within
twenty (20) days of first becoming aware of the complaint or
difference.
Article 27.2.2 in combination with article 27.3.1 provides that if
the "complaint or difference is not satisfactorily resolved within
seven days a grievance may be filed within ten days". Article
27.13 provides that "if a grievance is not processed within the
time allowed...it shall be deemed to have been withdrawn" and the
parties are in agreement in the present case that this has the
effect of making the time limit set out in Article 27.2.1
mandatory.
The central issue in the present case, then, rests on a
determination of when the twenty day period set out in article
27.2.1 begins to r~n. The Employer's position, briefly stated, ~s
that time begins to run once an employee is aware of the decision
which he or she now wishes to dispute. In the present case, that
would be the Employer's decision not to grant lieu days for the
statutory holidays in issue, thus rendering the present grievances
very substantially out of time. The Union argues, on the other
hand, that time does not begin to run until the employee
appreciates that the matter is one that is grievable, or
potentially grievable, under the Collective Agreement. Counsel for
both parties rely on previous decisions of the.Grievance Settlement
Board to support these apparently conflicting propositions and have
invited this panel of the Board, in effect, to choose between them.
Before turning to a consideration of past jurisprudence on this
point, however, it will be useful to briefly recount the
circumstances in which the individual grievances have arisen and
in which the individual grievors have sought redress through the
grievance procedure.
Mr. Ronkai sustained a compensable injury-to his knee in 1982
with respect to which surgery was necessary in 1982 and in 1984.
Mr. Ronkai was off work for this purpose in May of 1984 and did not
get a lieu day for his work assignment on May 21, 1984. Mr. Ronkai
returned to work in early June and in due course noticed that he
had not received a credit for this lieu day on the stub of his next
pay cheque. Accordingly, he went to the Personnel Department and
sgoke to Ms. Schuler about the matter. Though Ms. Schuler was
herself a member of the bargaining unit, she was, as far as the
evidence before this Board indicates, an appropriate person with
whom to raise an inquiry of this kind. Ms. Schuler responded that
he was not entitled to a credit in the circumstances. Mr. Ronkai
replied that he believed that he had received such credits in past.
Ms. Schuler answered that although that she did not think precisely
the same circumstances had arisen in the past, if they had, the
matter would simply be overlooked but the policy was one of not
granting lieu days in oases of this kind. Mr. Ronkai made no
further enquiries and accepted her view of the matter and there the
matter stood until January of 1988. At that time, Mr. Ronkai had
a discussion with a fellow em91oyee named MacMillan and in the
course of their conversation MacMillan revealed that he had
successfully grieved a lieu day entitlement in circumstances
similar to Mr. Ronkai's. In fact, the grievance was settled by an
agreement dated August 31, 1987 (Exhibit 4). Ronkai then raised
the matter with his supervisor and, when advised that it was his
view that it was'too late to pursue the matter, Ronkai spoke to the
Union and'a grievance was filed shortly thereafter.
The second grievor, Mr. Bleach, sustained a compensable injury
in July and August of 1986. When he returned to work in September
he claimed a lieu day for August 4, 1986. When he was not awarded
a credit, he raised the matter with his supervisor who suggested
that he speak to.Ms. Schuler. Bleach did so and Ms. Schuler
offered the same advice that she had given to Ronkai. Mr. Bleach
raised with her the case of Carol Walberg which he understood was
one in which such a lieu day had been granted. Ms. Schuler
responded that it was her understanding that the Employer had
reneged on that arrangement and that the current policy was as she
had explained it to Bleach. Mr. Bleach made no further enquiries
with respect to the claim for August 4, 1986. Further, he made no
enquiries on or about the time of his failure to receive .credit
with respect to the statutory holidays on December 26, 1987 and
January 1, 1988. Mr. Bleach's awareness of the change in policy
came about as a result of a conversation with Ronkai in January of
1988, as a result of which he too spoke to the Union with the
result that a grievance was filed.
In summary, then, each grievor was aware of a negative
decision being made with respect to a matter of interest at the
time the decision was made and each grievor made enquiries at that
time. It was only some years later, however, that they.each became
aware that a grievance with respect to a similar decision effecting
another employee had enjoyed success. Upon learning of this fact,
Ronkai and then Bleach, in turn, promptly filed grievances. The
Employer's position is that, for purposes of Article 27.2.1, the
time began to run at the time each employee first became aware of
the decision that credit would not be given for the lieu day in
each case. The Union argues, however, that time did not run until,
in Ronkai's case, the grievor had a conversation with MacMillan and
in Bleach's case, the grievor had a conversation with Ronkai.
In support of the view that time begins to run when the
employee first becomes aware of an act or event which in some way
~dversely affects the employee, the Employer relied on three
previous decisions of the Grievance Settlement Board, Lam_ and
Ministrv of Transportation and Communications, 377/83 (Jolliffe);
Goheen and Min~stk"v of Education 321/82 (Verity); Graham ~nd
Ministry of Transportation, 0981/86 (Ratushny). The decision in
Lam concerned a contested placement which had resulted from the
relocation of a particular unit. The grievor had signed an
agreement accepting reassignment and at some undetermined point in
time thereafter had raised the matter with the Union with the
eventual result that a grievance was filed eight months after the
incident at issue. The Board noted that the applicable Article of
the agreement, Article 24, was a complicated one and that it was
probably for this reason that the grievor and others remained
unaware that Article 24 might have some bearing on the situation
6
for some months. Nonetheless, the Board was of the view that the
time limits were mandatory and that the Board could not exercise
an equitable discretion to relieve against them.
In Goheen the grievance concerned a claim for travel expenses
which the Employer denied on the-basis ~hat-travel expenses were
covered by an honorarium which had been paid to the grievor. The
grievance was filed several months after the initial denial but the
grievor attempted to rely on the fact that subsequent discussions
with the Employer concerning the tax implications of the Employer's
position with respect to the honorarium created an estoppel and
precluded the Employer from relying on a strict interpretation of
article 27.2.1. The Board rejected this submission on the basis
that the subsequent discussions related only to matters of taxation
and not to the question of denial and therefore did not prevent the
running of time under Article 27.
In Graham the claim related to an alleged failure to pay.
appropriate amounts of overtime pay over a period of some five
years or so. The grievor sought to avoid the application of
Article 27.2.1 on the basis that he had only become aware of the
possibility of a claim with respect to this matter as a result of
a conversation with a fellow employee some three years after the
events in question. The Board rejected this submission and
dismissed the g~evance as untimely on the following basis at page
4:
"Nor can we accept the proposition that section 27,2.1 only
becomes operative when an employee subjectively "believes"
that he has a complaint or difference. Again, no authority
was cited to support this position. In our view, unless an
7
element of objectivity is read into this provision it could
not serve its purpose of providing some finality and avoiding
grievances based on situations which arose long in the past.
Our situation does not involve circumstances where the
employees were not aware of the facts upon which the grievance
was based. He was aware at all times, of the hours and days
which he was working. Nor does it involve any misconduct or
misrepresentation on the part of the Employer.
Rather, the employee became aware in 1986, for the first time,
of the nature of the Schedule which applied to his position.
We are of the view that lack of personal knowledge by an
employee of a statutory provision, regulation or ter~ of the
collective agreement cannot form the basis for avoiding the
application of a mandatory time limit.
The Employer contends that these three decisions establish
what might be termed an "objective" test relating to the
interpretation of Article 27.2.1. That is to say, the time limit
will begin to run when the employee' is aware of the adverse or
prejudicial conduct on the part of the Employer, whether or not the
employee appreciated at that time that the matter was potentially
grievable. For its part, the Union relies on two recent decisions
of the Board in which the view has been taken that time may not
begin to run under Article 27.2.1 until the employee "subjectively"
realizes or believes that the prejudicial decision or conduct in
question is potentially grievable= Mitchell and Ministry of
Government Services, 1614/S5 and 1615/85 (Samuels); Pierre and
Ministry of Correctional Services, 0492/86 (Verity).
In Mitchell, the grievor had been on Long Term Income
Protection (LTIP) for a period of time but it had been decided by
the insurer that the benefits would cease as of July 22, 1985, thus
rendering her a surplus employee subject to Article 24. In
subsequent weeks, the Employer provided the grieuor with advice
concerning her rights under Article 24 to be assigned to vacant
positions under the certain circumstances. The gravamen of the
complaint, however, was that the Employer did not adequately
explain to the grievor that she had the right'to displace, in
.certain circumstances, employees in lower paying positions.
Although she had been told that she had."bumping rights", she was
not given sufficient information in this. regard to understand what
her situation was. The Board noted further that the grievor had
been on LTIP as a result of depression and took the view that the
prospect of losing her employment would have aggravated her
emotional state and further compromised her ability to understand
the options available to her. Shortly before the layoff was to
occur, the grievor met an old acquaintance who advised her to speak
to the Union about her situation. The grievor actually did so in
the second week of January and it was only at this time, in the
Board's view, that she was fully aware that the handling of her
case might involve a breach of the Collective Agreement. The
grievance, which was filed shortly after this meeting, would not
have been timely if time had begun to run at the time at which she
became aware of the Employer's decisions concerning her employment
status. The Board held, however, that time would not begin to run
until the grievor's meeting with the Union. The Board offered the
following explanation for this holding at pages 6-7:
"Now, with respect to the timeliness of the individual
grievances, Article 27.2.1 establishes a time limit which does
not begin to run until the employee first becomes aware of the
complaint or difference. The words 'complaint or difference'
refer to 'complaints or differences between the parties
arising from the interpretation, application, administration
9
or alleged contravention of this Agreement'". (Article 27.1)
In other words, the time does not begin to run until the
employee is aware that there is a complaint or difference
under the collective ~greement. Her complaint or difference
in this sense is not being declared surplus, or being laid
off, but her feeling that she has not been treated according
to the collective_agreement. While we have some hesitation
concerning her awareness of her rights under the collective
agreement, on balance we find that, bearing in mind
- her emotional state at the time,
- the complication of the surplus procedures under Article
24,
- the brief explanation of these procedures that she was
given,
- the fact that she wasn't in the workplace throughout the
period, to benefit from the advice of friends,
- the failure of the Ministry to explain fully to her the
possibility and consequenoes of displacement (she needed
to know the potential financial oonsequences in order to
choose to displace another employee rather than wait for
an assignment for a vacant position),
she was not aware that ~he had a complaint or difference until
she met with Mr. Stewart in the second week of January, 1986.
We note as well that in this case the Employer had failed to
provide notice of the impending layoff of the grievor to the Union
as is required by Article 24.10. The purpose of this provision is
obviously to provide an opportunity to the Union to provide helpful
advice to an individual in such circumstances. The Employer's
alleged failure to provide such notice was the subject of a
separate grievance by the Union. In our view, it is perhaps
relevant to the disposition made of the in~ividual grievance of the
grievor that the arrangements put in place by the Agreement in
order to ensure that the grievor in such a case is fully advised
of his or her rights under the Collective Agreement were not
followed. That is to say, the Collective Agreement, in apparent
recognition of the gravity of the situation and the complexity of
10
the arrangements concerning it, attempts to secure that all
employees in the grievor's position are given advice by the Union.
Where an employee, as a result of the Employer's failure to provide
notice, fails to get such advice, it is perhaps not surprising that
a Board would find itself able to conclude that the time limits
under Article 24 do not begin to run until such time as the
employee does receive such advice.
The grievance in Pierre arose from concerns relating to the
exposure of a Correctional Officer to an inmate suffering from
tuberculosis and subsequent testing and treatment procedures, once
informed that a former inmate had an active case of T.B., the
correctional centre in question arranged for skin testing and x-
raying of certain staff, including the grievor. The testing took
place in early 1985. The grievor had a positive skin test and her
physician.was so advised on April 18, 1985. It was not until mid-
November, 1985 that the grievor visited her physician, however, and
was then advised to commence certain drug treatments. Although the
grievor commenced treatment shortly thereafter, she was apparently
concerned that she had not been told the results of either the skin
tests or the x-ray procedure and she spoke to the Union president
in November of 1987 regarding her concerns. The president was
allegedly satisfied that the matter was a routine one and, in
particular, not grievable. He did suggest, however, that the
grievor see a lawyer. On February 25, 1986, the grievor, as a
result of receiving unfavourable work appraisals, met with the
Chief Steward. It was her view that her appraisals were linked to
11
her involvement with the health issue and she was advised to file
a grievance. On March 4, 1986, a grievance was filed alleging that
the Employer had failed to provide proper health and safety
measures with respect to the above incident. Obviously, the
grievance would be timely only if time began to run at the time of
the grievor's conversation with the Chief Steward. The Board in
the Pierre case followed what it viewed to be the subjective
approach adopted in the Mitchell case. The Board stated at page
14 that "what is required on the part of the employee to comply
with the mandatory time limit, is knowledge or awareness that there
has been a violation or possible violation of the provisions of the
Collective Agreement. Article 27.2.1 contemplates the knowledge
on the part of the employee - a subjective concept." The Board
went on to quote from the decision of Vice-Chairman Samuels in the
Mitchell case. The Board also noted that a different test is
appropriate in the context of Union grievances. Article 27.12.1
stipulates the triggering event as "the occurrence or origination
of the circumstances giving rise to the grievance" and this, in the
Board's view, was lanquage which is inconsistent with a subjective
interpretation.
In summary, then, this panel of the Board is confronted with
opposing interpretations of the test to-be applied under Article
27.2.1. In such circumstances, in our view, it is incumbent upon
a panel of the Board to consider carefully whether or not
apparently contradictory lines of authority of previous panels are
reconcilable. Of course, it will from time to time be the case
12
that inconsistent lines of authority do develop and a clear choice
between them must be made. At the same time, however, the
principle of granting deference to previous aecisions of the Board
suggests that the possibility of effecting an appropriate
reconciliation of such authorities be carefully considered before
moving to a choice of this kind which carries with it the
implication that some previous decisions of the Board were
incorrectly decided. In our view, it will be some indication of
the desirability of attempting a reconciliation if the results of
the previous cases, if not their reasoning, appear to be generally
satisfactory. In the present instance, it is our view that the
results of the previous cases are indeed generally satisfactory.
In our view, an objective approach to the interpretation of
Article 27.2.1 ought to be adopted as a matter of general
principle, provided that a subjective approach may be used in cases
where that approach is more appropriate. The critical distinction
to be drawn between cases in which the objective approach is
appropriate and those where it is not rests on a determination as
to whether or not the matter which is the subject of the "complaint
or difference" under Article 27.2.1 is one which obviously raises
issues related to the administration of the Collective Agreement.
Thus, disputes with respect to travel expenses and overtime pay
evidently relate to matters that would be provided for in the
Collective Agreement. An employee who becomes aware of a
"complaint or difference" concerning such a matter, should, in our
view, be assumed to realize that this is a matter which he or she
13
could pursue through the dispute resolution procedures of the
Collective Agreement. Thus, an employee who is disappointed by an
Employer decision with respect to a matter of this kind must,
whether or not he or she "subjectively" believes the matter to be
potentially grievable, pursue the matter within the time frame
stipulated in Article 27.2.1. Any other interpretation of the
Agreement would be inconsistent, in our view, with the stipulation
in Article 27.1 to the effect that "It is the intent of this
agreement to adjust as quickly as possible to any complaints or
differences between the parties arising from the' interpretation,
application, administration or alleged 'contravention of this
agreement..." and its underlying rationale.
Were this interpretation not adopted as a general matter, the
Employer could regularly find itself in the following
circumstances. The Employer could adopt an interpretation of the
Agreement and plan and administer its affairs, including their
budgetary implications, on the assumption that this particular
interpretation of the agreement is acceptable to the Union, as
evidenced by the fact that it has not been the subject matter of
a grievance. Several years, indeed, could pass on this basis only
to have a grievance ultimately surface and reveal that the
interpretation is not a proper one. If one adopts the "subjective"
approach to Article 27.2.1 in such circumstances, the implication
would be that all past conduct would be subject to further
grievances on the theory that only after the first grievance
succeeded did various individuals appreciate that there had been
a violation or possible violation of the provisions of the
Agreement. In theory, then, grievances relating to incidents,
perhaps running back over a period of several years, could be the
subject of timely grievances. This is a result which we view to
be inconsistent with. the policy expressed in Article
concerning finality and expedition in the resolution of disputes.
Accordingly, we adopt the view that where obvious matters of
contract administration are Concerned, an objective test should be
adopted in the interpretation of Article 27.2.1. it follows from
this that we view the previous Board decisions in Lam, Goheen and
Graham as consistent with this approach.
On the other hand, there may well be unusual circumstances in
which a subjective approach of the kind utilized in Mitchell and
Pierre is appropriate. Thus, where the nature of the problem is
one which an employee may reasonably not have understood to be a
matter covered by the Collective Agreement or relating to its
administration, it may be appropriate to delay the running of time
under Article 27.2.1 until such time as the-employee comes to
appreciate that this is the case. In both Mitchell and Pierre,
there were grounds on which the Board could have satisfied itself
that the grievor in each case had initially reasonably failed to
understand the potential applicability of the Collective Agreement
to the situation at hand.
In summary, then, it is our view that the requirement for the
commencement of the running of time under Article 27.2.1 is that
the employee has a "complaint or difference" with the Employer and
15
has reasonable grounds to believe, in the language of Article 27.1
that the complaint or difference is one which is "arising from the
interpretation, application, administration or alleged
contravention of this Agreement .... " Where the matter is one which
the employee ought reasonably to understand to be a matter of
contract administration, the test is an objective one and the time
will begin running under Article 27.2.1 at the time when the
employee becomes aware of the decision or act of the Employer which
adversely or prejudicially affects the employee. Where, on the
other hand, the decision or act is one with respect to which the~
employee can reasonably maintain that he or she did not understand
that a matter of contract administration was involved, a subjective
approach to the operation of Article 27.2.1 may, in our view, be
utilized. The case for doing so in Mitchell, we would add, appears
considerably strengthened by the alleged failure of the Employer
in that case to provide notice to the Union in the manner required
by the Collective Agreement to ensure that the employee in such a
.situation would receive timely advice from the Union.
It remains, then, to apply the foregoing analysis to the
present circumstances. In our view, the dispute concerning lieu
day credits raises issues which are evidently matters of contract
administration. Accordingly, it is appropriate to consider the
triggering event under Article 27.2.1 to be the awareness of the
grievor in each case of the Employer decision with respect to the
denial of lieu day credits. We note further that in each case the
evidence indicates that the grievor in question was not only aware
16
of the negative decision made by the Employer, but protested the
decision in some fashion to the Personnel Department. In each
case, the grievor determined at that time to accept the Personnel
Department's view of the matter rather than to pursue it further
with their Union. Such circumstances, in our view, represent an
obvious case for the application of the objective standard under
Article 27.2.1 and it follows that.these agreements fail to comply
with the time limits set out'in that Article.
For the foregoing reasons, these grievances are hereby
dismissed.
DATED at Toronto, this 27th day of Webruary, 1989.
.hn D. McCamus ~ce- ChaLrperson
T. Kearney, Me~er
D. Wallace, Me~er