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HomeMy WebLinkAboutKwizera 15-12-021617/G BETWEEN IN THE MATTER OF AN ARBITRATION ROYAL OTTAWA HEALTH CARE GROUP ("the Hospital" / "the Employer") - AND - ONTARIO PUBLIC SERVICE EMPLOYEES UNION ("the Union") CONCERNING THE INDIVIDUAL GRIEVANCE of ELSIE KWIZERA ("the Grievor") OPSEU GRIEVANCE #2015-0479-0025 Christopher Albertyn - Sole Arbitrator APPEARANCES For the Union: Robin Lostracco, Grievance Officer Elsie Kwizera, Grievor Patricia Swick, Steward For the Employer: Michelle O'Bonsawin, General Counsel Lise Belanger, Corporate Manager, Labour Relations and Conflict Resolution Alicia Bouchard, Corporate Labour Relations Manager Attila Rezaie, Student -at -Law Steve Duffy, Director of Patient Care Hearing held in OTTAWA on October 16 and November 16, 2015. Award issued on December 2, 2015. AWARD This award concerns the timeliness of a grievance in which Elsie Kwizera, the Grievor, claims that the Hospital ought to have credited her with recent related work experience as a social worker, thereby placing her higher on the wage grid. 2. The relevant provision is Article 28.02, the pertinent portion of which reads: Claims for recent related experience, if any, shall be made in writing by the employee, at the time of hiring, on the application for employment form or otherwise. The employee shall cooperate with the Hospital by providing verification of previous experience. The Hospital will credit the employee with one increment on the salary scale, for every year of recent, related, full-time experience, as determined by the Hospital. There is no application -for -employment form. 4. Ms. Kwizera was hired by letter dated February 5, 2013, as a Social Worker 2, on a temporary part-time contract, her work to start on February 11, 2013. She became a regular full-time employee on April 17, 2014. 5. Prior to Ms. Kwizera's appointment on contract, Suzanne Lefebvre, a Human Resources Generalist, phoned her on January 25, 2013. Ms. Lefebvre kept notes of what she discussed with Ms. Kwizera. She communicated the Hospital's job offer. In the course of doing so, she explained that Ms. Kwizera could claim credit for recent related work experience. 6. There is a difference between what Ms. Lefebvre says she told Ms. Kwizera, and what Ms. Kwizera says she remembers being told regarding recent related work experience. Ms. Lefebvre cannot recall the actual conversation with Ms. Kwizera, nearly three years ago, but she describes what she always does in these types of conversations. She says she would have told Ms. Kwizera that she should provide details in writing of any recent relevant work experience for the position into which she was being hired for the Hospital to assess. She explained that the purpose of doing so was for Ms. Kwizera to get credit for that experience and be placed higher on the salary grid. 7. Ms. Kwizera's evidence of the phonecall with Ms. Lefebvre is internally inconsistent. She says both that the topic of recent related experience was not discussed and also that Ms. Lefebvre referred to her recent related work experience as an M.S.W., a Masters in Social Work, and not with respect to her position as a Social Worker 2. My conclusion from Ms. Kwizera's evidence is that, like Ms. Lefebvre, she has no actual recollection of the phonecall. After the phone conversation, Ms. Lefebvre sent a letter to Ms. Kwizera on February 5, 2013, offering the Social Worker 2 position to her. The relevant portion of the letter reads: Claim for recent related experience as a MSW, shall be made in writing at the time of hire by providing written verification from your previous employers, of your previous experience. This experience will be evaluated during your probationary period. Please refer to Article 28.02 of the OPSEU collective agreement for further details. 9. This portion of the letter was not accurate. It ought to have read, "Claim for recent related experience as a Social Worker, ... ", not as an MSW. 10. Ms. Kwizera did not refer to Article 28.02 of the collective agreement to obtain further details, as was recommended in the letter. When she received the letter she had not yet obtained her MSW qualification. She received the degree only on February 18, 2013. So, at the time Ms. Kwizera received the February 5, 2013 letter, she did not have any experience as an MSW. She therefore thought that she had no basis for presenting any recent related work experience to the Hospital. Accordingly, Ms. Kwizera made no written submission to the Employer of her recent related work experience as a social worker, with a B.S.W. 11. Ms. Kwizera's mistaken impression of what experience she could rely on was corrected in her pre-employment orientation meeting with another Human Resources Generalist, Kate Hunter, on February 6, 2013, shortly before her start date of February 11, 2013. I accept Ms. Hunter's evidence that she properly informed Ms. Kwizera at the meeting that she was entitled to provide the Hospital with proof of any recent related experience with respect to the position she was appointed to, a Social Worker 2. Ms. Hunter's information repeated what Ms. Lefebvre says she told Ms. Kwizera, and it ought to have served to correct the mistaken impression created by the letter of appointment. 12. Nonetheless Ms. Kwizera did not change the erroneous impression she gained from her letter of employment, that her recent related experience had to do with her qualification, the MSW, and not with the position she would occupy. 13. Consequently, Ms. Kwizera failed to make a claim for recent related experience during her six -months' probation, which expired in August 2013. 14. In the spring of 2015, a long period after she became a permanent employee, Ms. Kwizera had a conversation with a colleague, the result of which was that she realized she might have been entitled to claim recent related experience because it concerned her position, not her qualification. She made inquiries of the Hospital whether she could then make such a claim. She was told that she was out of time to do so. She then filed the grievance, on June 10, 2015. This was nearly two years after the period during which she ought to have made her claim for recent related experience. 15. The Hospital takes the position that the grievance is untimely and that Article 28.02 precludes the Grievor from making a claim beyond her probationary period. 16. Although Article 28.02 says that a claim "shall be made in writing by the employee, at the time of hiring", the parties agree that the relevant period for making the claim is the employee's probation, a period of six months. Under the rel provision, Ms. Kwizera ought to have made her claim by August 2013. 17. The Union responds to the Employer's timeliness objection to the grievance by referring to Article 10.03a) of the collective agreement. Article 10 has the Grievance & Arbitration Procedure. The portion the Union relies on in Article 10.03a) provides: It is the mutual desire of the parties hereto that complaints shall be adjusted as quickly as possible, and it is understood that an employee has no grievance until she has first given her immediate supervisor the opportunity of adjusting her complaint. Such complaint shall be discussed with her immediate supervisor within nine (9) calendar days from the event giving rise to the grievance, or from when the employee should have reasonably become aware of the event giving rise to the grievance... 18. The Union relies on the highlighted portion and suggests that Ms. Kwizera reasonably became aware of her entitlement to claim recent related experience only once she had spoken to her colleague shortly before filing her grievance in June 2015. 19. The Union takes a number of positions on the grievance. The first is that the Grievor's application for employment should be treated as her claim for recent 7 related experience because her resume sent with her letter of application has details of her recent related experience that the Employer ought to have treated as her claim. There is jurisprudential support for this submission: Royal Ottawa Hospital and ONA, Re, [1990] 19 C.L.A.S. 553 (H.D. Brown); F.J. Davey Home for the Aged and ONA, Re, [ 1990] 21 C.L.A. S. 181 (Samuels); Lakeridge Health Corp. and ONA (Nelson), [2014] 118 C.L.A.S. 302 (Carter). 20. The difficulty with this submission is that the Hospital's long established practice for all employees, not just those in the OPSEU bargaining unit, which was conveyed to Ms. Kwizera when she was hired, is that the claim must be made in writing with details of the hours claimed with each previous employer. The parties have contemplated a separate application from the employee's resume and job application. This is also because the employee's resume and job application does not contain details of the hours worked and in what capacity for a previous employer from which the Hospital can determine what recent related experience to recognize. I therefore find that Ms. Kwizera's job application cannot be treated as compliance with Article 28.02. For a recent related experience claim under Article 28.02, the employee must make a separate written claim with the necessary details. 21. The Union's next claim is that her grievance is a continuing grievance because the non -recognition of the Grievor's recent related experience has an impact on her wages each pay period. She earns less than she would if her recent relevant experience were recognized. The Union refers to caselaw where a claim for related experience was found to be a continuing grievance: F.J. Davey Home for the Aged and ONA, above; Dufferin-Peel Catholic District School Board and OECTA (1998), 77 L.A.C. (4th) 69 (Herlich); Greater Essex District School Board v. ETFO, [2007] O.L.A.A. No. 292 (O'Neil); Haldimand-Norfolk (Regional Municipality) v. Health, Office & Professional Employees, Local 175 (1991), 23 L.A.C. (4th) 282 (Rose); Family and Children's Services of Renfrew County and OPSEU(2004), 124 L.A.C. (4th) 321 (Knopf). 22. In those cases the grievor claimed the employer concerned had placed them on the wrong step of the grid by failing to take account of their relevant experience. The issue in each case was that the employee had, for some reason, failed to make the claim at the time they were placed on the wrong step of the grid, but did so later. The question in each of those cases was whether the grievance was untimely because it was not brought at the time of the placement 0 on the grid. The arbitrator in each case concluded that, if the employee were wrongly placed on the grid, they were losing income each pay period, and that meant they had a continuing grievance, enabling them to pursue their grievances, even though they were submitted long after their placement on the salary grid. 23. While the present case may appear to be similar to those cases, it is not. In those cases there was no time limit for making a claim of relevant experience. The present case has a collective agreement provision which says that claims for recent related experience must be made within a particular window of claim, during the employee's probation. That requirement is absent from the cases the Union relies on for its assertion of a continuing grievance. The present case is akin to that relied upon by the Hospital, St. Clair Catholic District School Board v. OECTA (St. Clair Secondary Unit), 2011 CanLII 5487 (ON LA) (Luborsky). Arbitrator Luborsky found that an employee's claim for recent related experience crystalized at a particular point in time, as stipulated in the collective agreement, providing a "one-time opportunity for the employee `to submit a request for recognition of related employment experience"' (para. 29) — in the present case by the end of probation — and that the employee must have made their claim by that date. 10 24. In the present case the final moment for the claim of recent related experience was the end of Ms. Kwizera's probation. She had to make her claim by that date. Her failure to have done so has continuing financial implications for her, but it does not constitute a continuing grievance. 25. Notwithstanding this conclusion, the difficulty with the strict enforcement of the timeliness provision of Article 28.02 in this case is that the letter from the Hospital to the Grievor on February 5, 2013 had incorrect information that affected her appreciation of her entitlement to claim recent related experience. The letter referred to her recent related experience as an MSW. She had no such experience. So she reasonably assumed she had no claim for recent related experience. 26. The Grievor's opportunity to claim her recent related experience was undermined by the Employer's letter of employment indicating that a different kind of experience was required. Although the intention and content of Ms. Hunter's conversation with the Grievor on February 6, 2013 should have set the record straight on what was required, the Grievor cannot be blamed for taking the 11 actual written document given to her by the Hospital, and signed by its designated representative, at face value. No further clarifying document was provided so the Grievor was entitled to rely on the February 5, 2013 letter. 27. On these facts, having regard to the provisions of Article 10.03a) of the collective agreement, the Grievor reasonably become aware of the event giving rise to her grievance only shortly before filing it. Accordingly, I exercise my discretion to allow this grievance to proceed, even though filed outside of the probationary time limit contemplated in Article 28.02. The grievance will proceed from the date when it was filed on June 10, 2015. 28. Ms. Kwizera is given an opportunity to claim for recent related experience. She has not yet submitted her claim. She may do so promptly with the necessary verification and the Hospital will process her claim as of June 10, 2015. 29. The Hospital's timeliness objection to the grievance is therefore dismissed. I remain seized of the implementation of the award and of any dispute between the parties concerning the Grievor's claim for recent related experience. 12 DATED at TORONTO on December 2, 2015. Christopher J. Albertyn Arbitrator