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HomeMy WebLinkAboutStubbins 91-03-22 IN THE MATTER OF AN ARBITRATION BETWEEN: NIAGARA COLLEGE (hereinafter referred to as "the Employer)" -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (hereinafter referred to as "the Trade Union") AND IN THE MATTE/~ OF A GRIEVANCE OF MS. J. STUBBINS OPSEU FILE NO: 90C247 BEFORE: David H. Kates, Chairman Sherill Murray, Union Nominee R. Andrew Shields, College Nominee APPEARING FOR THE COLLEGE: Susan McDermott, Counsel APPEARING FOR THE TRADE UNION: Kevin Whitaker, Counsel Heard at Welland, Ontario on February 19, 1991. DECISION The Grievor, Ms. J. Stubbins, filed a grievance dated May 16, 1990 alleging that the employer failed to maintain its work place in a manner consistent with its obligations under The Occupational Health and Safety Act. That statutory obligation suggested that the employer in managing its support staff is required to take reasonable measures to protect its employees from hazards related to "the work atmosphere". The College has raised a preliminary objection relating to the timeliness of the grievance. The relevant provision of the Collective Agreement dealing with "time limits" reads as follows: 18.6.1 Grievances 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 given rise to the complaint have occurred, or have come or ought reasonably to have come to the attention of the employee. In order to place the Colleges' timeliness objection in its proper perspective it will be necessary to outline the facts precipitating the grievance. The Grievor and a co-employee, Ms. Alice Moss, work in the employer's Media/Print Department. In large part, their work duties relate to operating equipment and machines for copying documents and other materials. Apparently, the two employees did not "get along". Both employees had accumulated long service with the College. Through the manipulation of their work assignments and work schedules (as well as the mediation efforts of their former .../2 - 2 - supervisor) conflicts between them were kept to a minimum. In February, 1989, a new supervisor, Mr. Keith Lindberg, was retained. At that time a new reproduction machine was also introduced into the department. Both antagonists were required to "train" in the operation of that machine. But, of most significance, the effect of the introduction of the new machine resulted in a rearrangement of both their work assignments. For our purposes it suffices to say that where formerly both the Grievor and Ms. Moss worked apart from one an other, they now were required to work together. For a ten month period the Grievor worked .under this new arrangement. She underwent such serious stress that on November 11, 1989 she was compelled to go on (initially) short term disability leave and later took a long term disability absence. The Grievor was so incapacitated that she was placed under psychiatric care where medication to alleviate her condition was prescribed. On June 11, 1990, she was extended medical clearance enabling her return to work. During the period of her absence her short and long term disability payments were "topped up" by the use of available sick and vacation leave credits. As a result, the Grievor (who initially was extended fifteen days paid sick leave by the College which we understood to constitute a gratuitous gesture) was paid for the bulk of her absence at 100% of her regular salary having .../3 - 3 - regard to the combined effect of her disability payments and the use of sick and vacation leave credits as "a top up". As we appreciate the Grievor's complaint she insists that the employer was under an obligation to minimize the adverse impact of her having to work with Ms. Moss following the introduction of the new reproduction equipment. And indeed upon her return to work in June 1990, the College did take some steps to alleviate the Grievor's concerns with respect to her work relationship with Ms. Moss. Accordingly, whatever measures that were taken by the College at that time, the Grievor's complains should have been taken in February, 1989 (if not thereafter) to avoid the stressful work environment that eventually caused her serious medical condition. Accordingly, having regard to the Employer's alleged omission to meet its responsibilities for maintaining a "work atmosphere conducive to her well being" the Grievor has requested the reinstatement of her vacation and sick leave credits that were hitherto used to "top up" the disability payments paid to her during the period of her absence. The Grievor alleged that the Employer's violation took place on or about November 11, 1989, when she realized she was so incapacitated that she could no longer work. The employer suggested that the alleged violation of the Collective Agreement (assuming that these facts could be characterized as such) ought to have been brought to the Grievor's attention if not in February, .../4 - 4 - 1989 then some time later when the introduction of the new equipment was finalized. Whatever the date when the alleged violation took place, there is no dispute that the Grievor's grievance prima facie failed to satisfy the fifteen (15) day time limit for filing a grievance "after the circumstances giving rise to her complaint have occurred or have come or'ought reasonably to have come to the attention of the Employee". The Trade Union conceded that the Grievor delayed the filing of her grievance until May 16, 1990 in anticipation of her return to work. She obviously sought to convince the Employer to rearrange her work assignments so as to avoid or to minimize future conflict with Ms. Moss. To this end, she was apparently successful. The Trade Union has not claimed that the Grievor's medical condition at the time of her long term absence (November 11, 1989) was so serious that she did not appreciate that the circumstances with respect to her complaint against the Employer should have translated itself into a timely grievance. Rather, the Trade Union argued that the Grievor was so "distracted" by her medical condition that she simply did not realize that a grievance could have been filed. It was only when she anticipated her imminent return to work on June 11, 1990 that she appreciated that a grievance was necessary in order to resolve her work related dilemma. - 5 - In addressing ourselves to the Colleges' preliminary objection, we are of the opinion that the Grievor's grievance is untimely. Article 18.6.1 places a heavy onus on an employee to press a work-related complaint as a grievance with due diligence after the circumstances "giving rise to that complaint ought reasonably to have come to her attention". In the face of the admitted evidence described herein, the Grievor at the latest ought to have filed a grievance at least fifteen days after November 11, 1989 when she went on a leave of absence. Distraction is simply no excuse for failing to file a timely grievance. Indeed, Article 18.6.1 is designed for the very purpose of avoiding and eliminating such excuses. Apart from the foregoing, the Grievor at all material times was appreciative of her practical needs for financial maintenance during the period of her of absence. She was sufficiently competent to make the necessary applications with the College for the payment of monies under the relevant Short Term and Long Term Disability plans as well as the negotiation of the "top up" benefits through.the use of available sick leave and vacation leave credits. In short, if the Grievor was sufficiently cognizant of her practical needs in that regard she cannot, in our opinion be heard to say that she was too distracted to file a timely grievance. - 6 - For all the foregoing reasons the preliminary objection is sustained and the grievance is accordingly dismissed. Dated at this 22nd day of March, '199L. David H. Kates "Sherill Murray" I concur/~ Sherill Murray I concur/~ "R. Andrew Shields" R. Andrew Shields ADDENDUM Based on the particular and unique facts of t. his case this member concurs with the majority to dismiss this grievance. The provisions of Art. 18.6.1 are specifi(~ as to the timing and manner in which a grievance shall proceed. The preliminary objecti'on of timeliness raised by the employer was one of "when did 'the clock start ticking and when does it stop". The grievor conceded that she knew there, was a problem from February 89 up and until Nov. 11, 1989. The facts of this particular case could not support 'the characterization o_f her illness as more than distraction. This point distinguishes a Union claim of emotional, psychological or psychiatric disability to the extent that would prohibit the grievor from grieving. If evidence to substantiate this claim could have been adduced perhaps it may have brought this Board to a different conclusion. As the facts appear, the grievor was in a position to initiate a grievance. This panel member parts company with the majority on the notion that a grievor is compelled to file a grievance while on sick leave. It is unreasonable to expect an employee to participate in a work place process while not at work. Thus the clock should stop while the grievor is incapacitated and away from work. This interpretation does not prejudice the employer. By contrast the grievor is penalized by compelling a grievance procedure to carry forward while off sick.