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HomeMy WebLinkAboutFarner 93-07-30 Between: Lambton College (Employer) -and- Ontario Public Service Employees Union (Union) And In the Matter of Connie Farner Arbitrator: M. Brian Keller Employer Nominee: Mr. Joe Tascona Union Nominee: Ms. Jane Grimwood Appearances: For the Employer: Lynn Thomson For the Union: Mary Ann Kuntz The grievor Ms. Connie Farner filed a grievance on August 29, 1991 which stated: "I grieved that the College failed to apply Article 8.1.4.1 upon my return from LTD." As settlement desired she stated: "I request that the college correctly apply Article 8.1.4.1 of the Collective Agreement. I also request the retroactive pay differential (including the accumulated interest). At the outset of the hearing the Board was informed that there were two preliminary issues that had to be determined. The first was to determine whether the grievance was filed under the 1987- 1989 collective agreement or whether it was properly filed under the September 89 to August 91 collective agreement. The relevance of this issue is that Article 8.1.4.1 does not appear in the 1987-1989 collective agreement. The second issue to be dealt with was the issue of timeliness, the employer alleging that the grievance was filed out of time. After hearing evidence and following the submissions of the parties the Board made two oral rulings. The first, that the grievance was properly filed under the September 89 to August 91 collective agreement and therefore Article 8.1.4.1 was properly invoked by the grievor and second, that the grievance was filed out to time and that therefore the Board was without jurisdiction to deal further with this matter. The instant award gives reasons for those rulings. The grievor went on short term sick leave in August 1987. In July 1989 the carrier, Sun Life, indicated that her eligibility for Long Term Disability would cease effective August 31, 1989 based on the plans criteria but one must be totally disabled to the extent that one is prevented from performing any work for compensation or from following any gainful occupation. Based on the grievor's conversations with Sun Life and the employer's submissions, the conclusion was reached that she was not medically capable of returning to her former position or a comparable classification in the same pay band as her former position. - 4 - The College did however acknowledge a duty to accomodate her and develop a rehabilitation program that would allow her to return to work with a good chance of long term success. That plan, which was approved by Sun Life, included a gradual return to work over a three month period in a newly created position where she performed duties which were covered by the classification Clerk B GENERAL. Sun Life provided rehabilitation benefits until the completion of that program. On completion of that program the College wrote her a letter dated December 6, 1989 stating the conditions of her full time employment status. From the time of Ms. Farner's return to work on a part-time basis and later on a full-time basis she was employed at a level inferior to the position in which she was employed prior to her going on disability. According to the evidence of Ms. Farner she was of the belief that the appropriate time the employer would place her back to the Clerk B level. She based this view on various ongoing appraisals which indicated that she was gradually being given a fuller range of responsibilities, that her progress was satisfactory and that she was slowly gaining the confidence she required in order to work independently. - 5 - According to the testimony of the grievor in examination-in-chief she first became aware she might have a right to be put back to the classification she had before she went on disability in June 1991. On June 3, 1991 she went to see her supervisor Mr. Don Loraas and asked when she would be returned to a Clerk B position. She was told by Mr. Loraas that she was lucky she had a job because the College could have dismissed her when she went on LTD. Ms. Farner took notes of that meeting and those notes indicate inter alia: "I pointed out that our contract states "a reasonable period of time" and I that a felt I had waited a reasonable amount of time. Mr. Loraas told her to speak to Gwen Trone who is the Director of Human Resources for the College. At the bottom of the grievor's notes there is a P.S. which states "while I was sitting writing this up Don Loraas came in and saw me doing so and said "If you are planning to file a grievance you should see Gwen Trone first". That same day the grievor went to see Diane Brown who is the union representative and she testified Ms. Brown was to start the - 6 - grievance procedure. According to the grievor Ms. Brown had discussions with the Administration to try to sort out the situation. The grievor indicated she waited until June to raise the issue because she didn't know she had any rights until she talked to someone at another college who said that she should have been brought back to work at the same pay band. In cross examination she confirmed that she met with Mr. Loraas to discuss her belief that enough time had passed for the college to put her back on a Clerk B level. She also stated that it was at that time that she felt that the collective agreement had not been respected. Finally, she confirmed in her cross examination that when she spoke to the union in June they told her it was a grievable matter. She also stated that she knew on June 3 that the union felt that too much time had passed since her return to work with regard to her being put back to her substantive level. In the meantime, union officer met with Ms. Trone on July 4 to discuss their concerns about the fact that the grievor had yet to be returned to her substantive level. Ms. Trone made no - 7 - undertakings regarding that issue but when the issue was brought up by the union regardubg the classification of the position the grievor was then in she agreed to have it re-evaluated. According to Mr. Guy Bertrand who is the Vice President, Human Resources and Physical Facilities the result of that meeting was to formalize and develop a PDF and have it evaluated and classified. There was no undertaking regarding the return to work as requested by the union at that point. When the results of the PDF were known the grievance was filed. The first issue to be determined is whether the grievor could seek to avail herself of Article 8.1.4.1 which provides that on a return to work following disability an employee is to be put back to her substantive level within a reasonable period of time. Essentially the position taken by the college is that the grievor is precluded from grieving a violation of Article 8.1.4.1 on the basis that the benefits under this position were not operative and thus not available to her upon the date-of her return to work in October 1989. They take that position because Ms. Farner returned to work from Long Term Disability on a modified work program on October 2, 1989 prior to ratification of the - 8 - collective agreement which contains Article 8.1.4.1. The principle argument submitted by the union on behalf of the grievor was that her rights crystalized when she was advised that she would be returning to a full time position in December 1989 following a rehabilitative period which commenced October 2, 1989 on a part-time basis. This followed the ratification of the 1989-1991 agreement on October 16, 1989 and brings the matter as grieved clearly within the ambit of that agreement. It was also argued that throughout the grievance procedure up to the point of arbitration the employer has consistently taken the position that Ms. Farner was medically incapable of resuming work in her former position or a comparable one. At no time did the employer question her right to claim a breach of Article 8.1.4.1. It was the position taken by the union that the employer is precluded from substantially altering the essence of the position they have consistently relied on to embrace one which they perceived to be more favourable to their interests. It is the unanimous determination of this board that as submitted by the union the grievor's rights in fact did not crystalize until December 1989 the date after ratification of the collective - 9 - agreement containing Article 8.1.4.1. She was employed prior to that on a rehabilitative basis only. It was thus effectively her change in status in December 1989 that gives her the right to file a grievance under Article 8.1.4.1. With regard to this issue of timeliness there is no issue between the parties that the fifteen day time limit provided in the collective agreement is a mandatory one. The determination to be made by a board of arbitration is one of fact. What the board must look at is when the employee knew or ought to have become aware that she might have a matter that could be grieved under the collective agreement. Whatever sympathies members of the board of arbitration might have with respect to a particular position taken by an individual they. are not relevant to a determination on a question of fact. This board does not have the jurisdiction as board's of arbitration have under the Ontario Labour Relations Act to extend time limits. We are bound to look at the facts as they are presented to us and make our determination on those facts alone. In the instant case, the grievor by her own evidence testified that she was aware by June 3, the date of her meeting with Mr. - 10 - Loraas, that the issue was one which could be grieved. She stated at that time that she was of the view that sufficient time had passed for her to be put back into her substantive level. She was given no satisfaction at that time. And in fact she was told she was lucky she had a job at all. The board can reach no other conclusion but that it was on June 3 when she first saw Mr. Loraas and when she later saw the union to complain that a reasonable amount of time had past before she should have been returned to her substantive level when she was aware that she could file a grievance. The board is not determining in the instant case what the issue of reasonable amount of time is. This award simply deals with the issue of timeliness. What the board is stating is that it certainly became crystalized in the grievor's mind by June 3 that a reasonable period of time had past for the college to reinstate her to her substantive level. Even if the board has somehow erred on the date of June 3 we point out that on June 26, 1991 Ms. Farner raised the issue with Gwen Trone in a memo stating that she had just recently been advised that when she returned from Long Term Disability she should have been back to a position which paid no less than the position she originally left. Finally, there is the meeting on - 11 - July 4 between the union and the employer to discuss the grievor's situation: certainly by that date the grievor was aware that she had an issue that should be grieved. Regardless, however, of whether the date by which the employee should have been aware of the facts or circumstances given rise to her grievance was June 3, June 26 or July 4 the matter is out of time and thus the board is without jurisdiction to deal any further with this matter. The grievance is dismissed. Nepean, this day of , 1993. M.B. Keller, Arbitrator Joe Tascona, Employer Nominee Jane Grimwood, Union Nominee IN THE MATTER OF AN ARBITRATION BETWEEN' LAMBTON COLLEGE (Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Union) AND IN THE MATTER OF CONNIE FARNER Arbitrator: Mr. Brian Keller Employer Nominee: Mr. Joe Tascona Union Nominee: Jane Grimwood Appearances: For the Employer: Lynn Thomson For the Union: Mary Ann Kuntz DISSENT I.have read the AWARD of the Majority dismissing the grievance on the grounds of timeliness. I must respectfully dissent. Article 18.6.1 of the Collective Agreement states: A complaint shall be taken up'as a grievance in the following manner and sequence provided it is presented within fifteen (15) days after the circumstances giving rise to the complaint have occurred, or have come or ought reasonably to have come to the attention of the employee. in this case, the Board has determined that Article 8.1.4.1 applies. It states as follows: Where a person who is eligible to receive LTD benefits is medically capable of returning to his/her former position within twenty-four (24) months of being eligible to receive benefits, the person shall be assigned, within a reasonable period of time, to: 1. his/her former position, if such position continues to exist, or 2. a comparable classification in the same payband to his/ her former position, provided he/she is capable of performing the job and such a position exists. Such placement shall also be subject to the person's seniority at the time he/she became eligible to receive LTD benefits. A person shall not be required to return to work within twenty-four (24) months of being eligible to receive LTD benefits, unless he/she is medically capable of performing the duties of his/her former position. As is evident from the mandatory time limits set out in Article 18.6.1 and Article 18.2.1, the consequences to a potential grievor can be severe. In such a case, it is the accepted practice to construe such provisions strictly when applying them to the various substantive provisions in the Collective Agreement. This is especially so because Article 18.6.1 contains within it both an objective test (15 days offers the circumstances...occurred), and a subjective test (or ought reasonably have come to the attention of the employee). This latter test -- "reasonably" -- can only be interpreted by an evaluation of all the circumstances which existed at the time -- including Ms. Farner's mental state, any implied assurances given to her by the College, and so forth. Because Article 18.6.1 does not use the phrase -- "whichever is earlier" -- the clear addition of the subjective test is to extend time limits where the circumstances had not "reasonably" come to light. Article 8.1.4.1 refers to a person being "medically capable". This implies, clearly, that a determination be made; and the GROUNDS for that determination are an integral part of that determination. Has Connie Farrier ever been informed of the reasons for the determination of her medical incapability? The answer, uncontested, is clearly no. Unless and until the grounds for the determination of Ms. Farner's medical incapability have been communicated, no one, including the Grievor, could know that she ought to grieve. A grievance is a serious step in an employee's life. This grievance pertains to a complex provision of the Collective Agreement. If the College wished its employees to file first, and ask questions later, then they simply need not ever tell anyone why they do anything. That is not, with respect, the desired goal. In this case, Ms. Farner is still in time. When will the College fulfill its obligations under Article 8.1.4.1 .? The Grievance should be allowed. Toronto, this 14th day of July, 1993 Jane Grimwood, Union Nominee