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HomeMy WebLinkAbout1991-0537.Chisson & McDonald.92-05-13 ONTARIO EMPL OYES DE LA COURONNE CROWN EMPLOYEE$ DE L'ONTA RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2~'00, TORONTO, ONTARIO. M5G IZ8 TELEPHONE/TELEPHONE: [4'~6) 326-~388 ~80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1.,.~8 FACSIMILE/TEL~COPIE : [416) 326~ ~396 537/9l 'rl~ T~E i~TTER OF ~ ~RBZTR~TZON Un~e~ THE CROWN EHPLOYEEB COLLECTIVE B]~RGP, INII~ i~CT Before TIlE GRIEVanCE 8ETTLENENT BOP~RD BETWEEN OPSEU (Chiasson/McDonald) Grievor The Cro~n in Right of Ontar£o (Minis2ry of Communi2¥ & Social Services) F~ployer BBFORE: W. LOW Vice-Chairperson I. Thomson Member D. Halpert Member FOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE M. Gottesman EMPLOYER Counsel Legal Services Branch Ministry of COmmunity & Social Services April 9, 1992 The Grievors, Merrilyn McDonald and Diana Chiasson, grieve in the following identical terms: "That I have been improperly denied overtime for December 1, 1990, and December 2, 1990." Ms. Chiasson and Ms. McDonald are two of 21 field workers employed at the Sudbury office of the Ministry of Community and Social Services. They and their colleagues work under the supervision of three supervisors wh° in turn work under the direction of the District Senior Manager, Mr. Marvin Streich. In the summer of 1990, the increased case load in the Sudbury area resulted in a problem in the file room. The additional burden of paper work necessitated a re-organization of the file room and in October of 1990, a meeting was held at which all of the field staff were present, together with the three supervisors and Mr. Streich. During the course of the meeting, the Grievor Ms. Chiasson made a comment, inter alia, that the disorganization was a result of mismanagement and that the field workers were going to be too busy with their case loads~ to rectify the file room ~ituation. It is alleged that the comment angered Mr. Streich, the District Senior Manager. At the close!of the meeting it was agreed that volunteers were to be solicited t° assist in re-organizing the file room and in due course a list of volunteers was posted and volunteers were assigned time in the file room to effect the re- organization. The Grievors did not volunteer. Later, when it became apparent that the volunteer system was not adequate to meet the task, management decided to pay overtime for weekend work to finish the job, and the weekend of December 2nd and 3rd was chosen as the period during which the task was to be completed. A list was circulated upon which employees who wished to perform the overtime were to place their names. Both Grievors put their names down. In the result, however, neither was selected. Of seven names on the list, five were chosen, the only two not being chosen being the Grievors. The five who had been chosen had also previously volunteered and although one of the five subsequently dropped out, neither of the Grievors was asked to replace her. Against this background, counsel for the Union advised at the opening of the hearing that it is the Union's position that the denial of overtime was improper in that it constituted an unjust discipline of the Grievors. Counsel for the Ministry were also advised in September of 1991 that this was going to be the Union's argument. The Employer has made a Dreliminary objection to the 3 effect that this Board has no jurisdiction to consider whether the denial of overtime was an unjust discipline as this argument was not expressed in the written grievances. It is the Employer's contention that to allow the Union to argue that the denial of overtime was in the nature of discipline would be to permit the Union to change the nature of the grievances. We are referred to the decisions in Klassen v. The Ministry of Education, 1609/87, 1297/88 (Samuels), Heffering v. The Ministry of Consumer and Commercial Relations, 504/80 (Delisle), Gwin v. The Liquor Control Board of Ontario, 27/83 (Draper), and MacPherson v. The Ministry of Community and Social Services, 83/84 (Brandt), all of which stand for the proposition that the Union may not change the substance of the complaint from that set out in thelwritten grievance. It is noted, however, by Arbitrator Delisle in the Heffering case, following the decision of the Court of Appeal in Blouin Drywall Contractors Ltd. v. United Brotherhood of Carpenters, 75 C.L.L.C., 14, 295, that cases should not be won or lost on the technicality of form but rather on the merits, and' that the Board therefore ought not to strictly construe the grievance before it but should strive to resolve the real dispute between the parties. In the decision of Arbitrator Draper in the twin case, a distinction is drawn between one of construing the language of the grievance and a change in the substance of the grievance. In my view, the determination of this preliminary 4 objection should rest not only upon. whether or not the languaqe of the grievance can reasonably be comprehensive of the argument that the denial of overtime constituted a discipline, but also the factual background leading to this hearing. Ms. Chiasson gave evidence before us that as early as November 23, 1990, as soon as she learned that she was not to be given overtime to assist in the file room, she raised the issue with her supervisor Ms. Boivin, and wrote a memo to her dated November 23, 1990, which is set out here in full= "To= Joanne Boivin, Date= November 23, 1990 Acting Income Maintenance Supervisor RE= Overtime Denial for first weekend of December 199q I would like to be advised as to why I have been denied overtime to assist the file room in getting caught up to date. If you wish to discuss this, please advise. If not, a written response in requested. If a written response is received, I will consider it the informal discussion part of the grievance process. A denial of overtime can be considered disciplinary. Diana Chiasson, Field Worker. c.c. - Mary Streich, District Services Manager." At the Step 2 meeting which took place April 24, 1991, at which Ms. Boivin was present, together with Mr. Rivard, the Area Manager, Ms. Chiasson explained that it was her position that she had been denied overtime because of the comments that she had made during the meeting of October 1990 and because she had not volunteered to do the re-organization of the file room. Ms. Chiasson's evidence was that Ms. McDonald was also there and said at that meeting that she felt that she had been denied overtime because she had not volunteered to assisl in the re-organization of the file room. It is agreed as well that on or about September 6, 1991, prior to the original date set for this hearing, counsel for the Union put counsel for the Employer on notice that the argument to be advanced by the Union was that the denial of ow~rtime constituted a discipline and was unjust, The Collective Agreement between these parties does not give employees any specific guidance as to how their grievances are to be framed. Grievors are laymen and it would not foster the interests of resolving disputes between the Union and the e~loyer to insist that written grievances be drawn with the degree of specificity as to legal theory that would be expected of a pleading in a civil action. What is required is that the employer be put on 6 notice as to the conduct or circumstances of which the grievor complains in order that the employer be put on notice as to the case that it must meet. In my view, it is not necessary that the grievor advance in his written grievance every legal argument upon which he intends to rely at the hearing. In the instant grievances, I am of the view that the language used is sufficiently broad to permit the argument to be made that the denial of overtime was wrongful in that it consisted an unjust discipline. This is a matter of particularizing the complaint. It may equally encompass other arguments, which may or may not be meritorious, but I could not may that much an argument is a fundamental departure from the substance of the written grievance. There is additionally the fact that in the circumstances before us, there is no element of surprise or prejudice to the Employer. Indeed, it is apparent that the Employer was put on notice at the earliest possible stage of this dispute of the gist of the Grievors' complaint by way of Ms. Chiasson's memorandum to Ms. Boivin dated November 23, 1990, a copy of which went to Mr. Streich. The Employer has been put on notice since the first expression of the difference or complaint that it was the Grievors' theory that the denial of overtime was discipline. In such circumstances, it does not seem to me to lie in the mouth of the Employer to complain that it is caught by surprise as to the case it must meet. Even if the November 23, 1990, memo had not been 7 delivered and there was only the notice of this argument provided by counsel for the Union in September of 1991, I do not see how the Employer can be prejudiced. Six months have elapsed, giving time for the Employer'to prepare its defence to the case, and there is no suggestion that any witnesses or documentary material relevant to the discipline issue have been lost or destroyed by reason of the Employer having believed that the case was about something different. Indeed, there is no suggestion that the Employer was ever under the impression that this grievance was about something other than discipline. Had I been of the opinion that the grievance as presently framed was not sufficiently wide to include the argument that the conduct constituted a discipline, I would be inclined to allow an amendment, but for the reasons set out above, I do not believe that an amendment is necessary. The preliminary motion will therefore be dismissed and the case will proceed on its merits. DATED this I3th day of Bay, 1992. D. HALPERT