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HomeMy WebLinkAbout1992-1372.Kolmann.95-10-27 ,;. ~- ONTARIO I EMPLOYES DE LA COURONNE ~~ CROWN EMPLOYEES DEL 'ONTARIO - 1111 GRIEVANCE COMMISSION DE .. SETTLEMENT REGLEMENT , BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG lZ8 FACSIMILE /TELECOPIE '(416) 326-1396 GSB # 1372/92 OPSEU # 92E87l IN THE MATTER OF AN ARBI~RATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Kolmann) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional services) Employer BEFORE L Mikus Vice-Chairperson T Browes-Bugden Member F Collict Member FOR THE M McFadden GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of the Solieitor General & Correctional Services HEARING April 5, 1995 \ 0 f :--,"" I '( The grievor, Carol Kolmann, began her employment as a Correctional Officer (hereinafter referred to as IICOII) at the Metro Toronto East Detention Centre in September of 1984, as a casual employee. She became a full-time classified C02 in May of 1985. In October ...--. of 1989 she suffered an injury at work which was initially challenged but later, in February of 1990, validated as a compensable injury under the Workem CompellSation Act RS.O 1990, c. W 11 By letter dated June 26, 1990, the Workers' Compensation Board (hereinafter referred to as the IIWCB) wrote to the Ministry advising that the grievor was fit to return to work but that she was to avoid heaVy lifting. In July of 1990, the WCB revised that letter advising the Ministry that the grievor was now ready to return to work to her pre-accident job with no specific restrictions but commenting about steps she should take to avoid a relapse. Her WCB benefits were discontinued in August of that same year. Subsequent to the June letter, the grievor met with the employer to discuss her return to work What occurred at that meeting was a matter of dispute between the Ministry and the Union. The grievor alleges that she was told she could not return to her position as I a C02 as long as she was subject to the restriction on heavy lifting stated in the letter of June 26, 1994. The grievor claims she was told she could return to work in her fonner position but that she would be assigned the duties of a clerk She objected, alleging that male officers in similar positions had been accommodated and that she was being treated differently because she was a female. 1 \ ~~ . 2 Irrespective of what actually occurred at that meeting, the grievor subsequently wrote the following letter to the Ministry. August 24, 1990 To Whom it May Concern PersoIUlel Due to my present situation and the harassment that I have received by both my employer and the WCB, which has caused me a lot of stress (both emotional and physical) I wiSh to inform you that I am resigning from my correctional officer duties at this time. Please 'take note that this is my two weeks notice and it is to take effect immediately, ending September 7, 1 990. (sic) By letter dated August 29, 1990, Mr. Small, Senior Assistant Superintendent, Corrections, wrote the following letter to the grievor. This letter is to acknowledge that your letter of resignation dated August 24, 1990 has been received by the Ministry of Correctional Services. Further, your offer to resign your position at the Metropolitan Toronto East Detention Centre, effective September 07, 1990 has been accepted by the Ministry It would be appreciated if you would return your Ministry of Correctional Services Identification Card, Correctional Officer Uniform(s), footwear, mail box key, parking card, copy of Standing Orders and other material related to your employment to the institution prior to September 07, 1990. .J Thank you for your expected co-operation in this matter. Good luck in your future endeavours. In December of 1990, the -grievot began to write a series of letters concerning her situation. The first letters were to Mr. Dennis Drainville, MPP from the Lindsay area and Dr. Robert Elgie, who was Chair of the WCB at the time. In those letters the grievor included all of her documentation concerning her situation, advised them that she felt she had been harassed because of her WCB claim and asked them to assist her in getting a ! ( "i 3 WCB pension and her fonner position as a CO2. The letter to Dr. Elgie was referred the Director of the Central Client Services Division who responded to the grievor'sletter on January 24, 1991 He included in his letter a copy of the July 31, 1990, letter to the Ministry of Correctional Services from the WCB advising the employer that the grievor could return to her full duties, without restrictions. The griever then wrote to the Superintendent of the Metro Toronto East Detention Centre requesting a copy of that July 31, 1990 letter. A response to that letter was sent that same month advising the grievor that there was no such letter on her file but that the Ministry had received a letter dated September 25, 1990 advising it that the grievor was fit to return to her full pre-accident duties. I On April 12, 1991, the grievor wrote to the Deputy Minister of Correctional Services formally tequesting that she be reinstated to her fonner position. In that letter she advised him that she had resigned as a result of harassment. She claimed that she had been deceived and lied to by her senior supervisors and asked that she be reinstated to the Lindsay jail where she believed she could avoid the "influence of the senior supervisors at the Metro Toronto East Detention Centre II On December 17, 1991, the grievor attended a meeting with Mr. Robert Dawson, Director of the Human Resources Management Branch and Ms. Dina Palozzi, Deputy Director of Correctional Services. At that meeting it was agreed that the griever would be offered the '" ( ; 4 next available unclassified position at the Lindsay Jail, the Peterborough Jail or the Millbrook Correctional Centre. She was ultimately hired as a casual unclassified CO in the Lindsay Jail and continues to work in that capacity However, the grievor was not satisfied with that result and continued to write letters requesting a reinstatement to her fonner position. Finally, on July 13, 1992, the grievor filed a grievance alleging that she had been harassed by management personnel and asking that she be reinstated as a C02 at the institution of her choice. She also asked for retroactive payment for all lost monies and benefits to the date of her resignation and an apology for her suffering. It was the ~osition of the Ministry that the grievance should be diSmissed because of the delay and because the grievor failed to adhere to the mandatory time limits in the collective agreement. The Union took the position that the Ministry had sufficient notice at the time of her resignation that she was alleging harassment, which it chose to ignqre. In the interval the grievor kept the issue alive and the Ministry was aware that she was seeking reinstatement to her fonner position. The delay in filing the grievance did not prejudice the Ministry The allegations> contained in the letter of resignation and the grievance are serious and should not be dismissed on a technicality Mr Mously, representing the Ministry, took the position that the collective agreement is clear Article 27, the Grievance Procedure, requires that a complaint be discusse~ with ".. .,s " 5 the supervisor within 20 days of the grievor first becoming aware of it. Failing resolution, a grievor has a further 10 days to file a grievance in writing. Article 2713 clearly states that if a grievance is not processed through the grievance procedure within the time limits prescribed, it will be deemed to have been withdrawn. The Grievance Settlement Board's jurisprudence has been consistent. The time limits are mandatory and a failure to comply with them deems the grievance withdrawn. The Ministry took the position that the time ./ limits commence when the grievor subjectively becomes aware that there is a basis for a grievance. The Ministry asserted that, in this case, it is obvious that the time limits have not been adhered to. It is equally apparent that the grievor believed she was the victim of parassment at the time she resigned. She had filed a previous grievance alleging - harassment and knew of her right to grieve allegations of harassment. Subjectively she was aware of the basis for a grievance at the time she resigned, that is August 24, 1990. I She did not file the instant grievance until twenty-three months after that resignation. This Board, argued Mr Molisly, should dismiss the grievance on these grounds. \ In the alternative, the Ministry took the position that this Board should dismiss the grievance on the grounds of delay It relied on the following cases in support of its position: Re Mmistry ofTnmsportation and Commurlicaticms and OPSEU (I'ee1ing) (1979), GSB 4Sna (pritchard); The Ministry of Natural Resources and OPSEU (Boldt) (1990), GSB 221/90 (Verity); Be Mirdstry of Ccm:ectional Services and OPSEU (DaneJiuk) (1994), GSBr r I I '.. '; 6 220/93 (Barrett), Re Liquor, Contrbl Board of Ontario and'OPSEU (Clemen1B) (1991), GSB 112/8Q(pritchard) andRe Ministry of Health and OPSEU(Vl8gas) (1988), GSB 384/88 (Devlin) " Mr McFadden, counsel for the Union, took the position that the grievor did not resign but that the Ministry's' acceptance of her , resignation amounted to a discharge. He stated that the evidence on that issue would be extensive and there is nQ evidence before this Board that the Ministry will be unable to respond to that evidence. ,\ Mr McFadden argued that the grievor filed her grievance in July of 1992, before the amendments to the Crown Employees Collective Bargaining Act RS.O 1990, c. C.SO (hereinafter referred to as IICECBE1, and is entitled to a claim under section 18(2) which allows that, in addition to the rights under a collective agreement, an employee can grieve an unjust dismissal. The Union acknoV'{ledged that, if the Board ultimately decides that the grievor resigned her position, the grievor cannot rely on section 18(2) for relief. It took the posiQ.on that I would have to assume, for the sake of this preliminary issue, that the grievor had been tenninated in order to give her the benefit of section 18(2) The Keeling decision (supra) has decreed that a grievance filed pursuant to section 18(2) is not subject to the mandatory time limits under the collective agreement and, on that basis, the Ministry's first objection must fail. The Union took the position that at the time of the grievor's resignation letter, the Ministry ) ~ ~ 7 had been put. on notice that she was alleging she had been harassed. Its own policy dictates there will be no tolerarice for racial and/or sexual harassment. Instead, of investigating as it should have, it accepted her resignation. The Ministry had an obligation to investigate the grievor's allegations at that time. It chose not to but it carmot claim that I it did not have notice of the allegations. The grievor kept the issue alive through 1 numerous letters questioning the actions of the Employer and making it clear that she was seeking reinstatement to her fonner position. r In addition, argued the Union, article 27 of the collective agreement deals with complaints involving sexual harassment and article 27 10.3.1 expressly excludes complaints under this section from the time liIntts under the grievance procedure. The Union contended that the jurisprudence requires that a hearing on the merits is "- necessary to detennine whether the delay in filing the grievance caused sufficient prejudice to the Ministry that it carmot get a fair hearing. For those reasons it asks the Board to dismiss the :Ministry's preliminary objections and proceed to a hearing on the merits. DECISION There can be no doubt that the grievance was filed well outside the time limits in the collective agre'ement The Ministry takes the position that, on those grounds alone, I J ------ '" .. ~ 8 should dismiss this grievance. The Union, on the other hand, takes the position that the grievor was terminated and therefore has the right under CECBA to have her grievance heard on its merits, notwithstanding the delay However, in order to do that, it asks me to assume that she was terminated, at least for purposes of this preliminary matter. The parties have agreed that, if I allow the grievance to proceed, the next issue for me to determine will be ,the question of quit versus discharge. To date I have heard no evidence from the grievor or the Ministry concerning that issue and I am not prepared to make a finding on such a significant matter without further evidence, not even for the limited purpose suggested by the Union. If the Union can meet its onus of proving that the Ministry's acceptance of the grievor's resignation amounted to a discharge, it can renew its argument concerning section 18(2) of CECBA. The Ministry has also argued that the grievance should be dismissed on the grounds of delay In the Keeling case (supra), it was decided that, while delay can result in the dismissal of a grievance, it would be an aspect of the merits, not a matter of jurisdiction. In that case, the delay had };>een minor and there was no evidence of prejudice to the ,employer concerning its ability to present a defence. In the QernentB case (supra), the grievor had been terminated and the letter advising the employer of his decision to grieve that termination was never sent. As a result the actual notice of the grievance was not received by the employer for fourteen months. At the hearing the employer took the position that the grievance should be dismissed because ::; '( 9 the time limits in the collective agreement had not been complied with and because of the delay The Board adopted the findings of the Keeling Board and dismissed the employer's first objection. In considering the issue of delay, the Board concluded, on page 12: There are, of COUISe, numerous decisions in which unreasonable delay was raised as an ( objection by the employetbut rejected on the facts by the arbitrator. However, these cases are not inconsistent with the procedural proposition that in appropriate cases of unreasonable delay causing substantial prejudice it may be appropriate to dismiss the case without hearing all the evidence as to the merits. Whether or not such cases should be dismissed at any ~ stage is, of COUISe, a discretionaIYmatter and each panel of the Board must exercise its discretion in light of the facts of each case. It dismissed the grievance, notwithstanding the evidence before it that the documents had been preserved and the major witnesses could recall the details of the case. It concluded that it would be impossible to restore the Board's confidence concerning the nature of the evidence. It stated, at page 14, the following. The delay in the processing of this case was so great that it takes the case outside even the most liberal version of the requirements for a fair hearing. The Ministry also relied on the case of Viegas (supra) in which the grievor was trying to rescind her resignation of 1982 in a grievance filed in 1988. The evidence at the hearing demonstrated that the Ministry's witnesses had no independent recollection concerning the circumstances of the grievor's z:esignation. Additionally, one of the key witnesses for the Ministry had suffered a stroke which had effected his memory It concluded that the Ministry had been substantially prejudiced by the delay and dismissed the grievance onl those grounds. It is clear from the jurisprudence that a delay in the filing of a grievance is not a matter of jurisdiction bu~ rather a question of whether the prejudice suffered by the opposing party ,prevents them from being able to answer the case it has to meet. That is s9mething ~ " " j 10 that must be considered in the circumstances of each individual case. In the instant case, there has been no evidence of prejudice. The Ministry has not claimed that it no longer has relevant documentation concerning this matter. Neither has it suggested that key witnesses are no longer available or that the passage of time has affected the memory of the people involved. The question will be whether, at the conclusion of the hearing on the merits, the delay in the filing of the grievance has so ( impaired the Ministry's ability to respond to the allegations in the grievance that it would be unfair to al~ow the grievance. That must be detennined after the parties have presented their evidence, not at a preliminary stage where the Board has heard no evidence. For those reasons, the hearing shall continue on dates to be agreed upon by the parties. I would ask the parties to contact the Regis~ of the Grievance Settlement Board to arrange those dates. Signed this 27 day of October., 1995, in Toronto. J~ cX~. ., - Loretta Mikus, Vice-Chair III Dissentll (dissent attached) ------------------------- F. Collict~ Member I I I I i \ G . - , I DISSENT ,\ Re: G.S.B. # 1372/92 (Kolmann) ThIS Member is not In agreement with the award In tlus case The Employer 'has raised a preliminary objection as to whether or not the subject gnevance In thIs case (ExhibIt 1) was filed In a timely manner Tlus gnevance was sIgned July 13, 1992 The resIgnatIon letter of the gnevor (Exhibit 2) was signed and forwarded to the Employer In a letter dated August 24, 1990, almost two years earlier Clearly, the gnevor did not file the gnevance wltlun the time lirruts specified In Article 27 of the CollectIve Agreement; and the partIes are In agreement on these dates, ) The junsprudence In tlus respect IS well established and clear, on two counts 1 The tIme lirruts set out In the C A. for the filing of gnevances are mandatory, 2 The gnevor must have been subjectIvely aware that he/she had a complaint or gnevance, (See PIerre, DISt, Appeals Court) With reference to the first matter, the gnevance IS obVIously 23 months or so beyond the established mandatory tIme lirruts, Secondly, the gnevor IS no stranger to the gnevance adrrurustratlOn process as IS well eVIdenced l.. " by the Uruon's own subrrusslOns In ExhibIts 4 and 5 In tills respect, ExhibIt 5, the resolutlon of a gnevance, IS dated August 1, 1990, some 23 days pnor to the subrrusslOn of the gnevor's letter of resIgnatIOn. ObVIously, therefore, If the gnevor knew 23 days later that she had a complaint or difference Wlth the Employer, she was sub1ectIvely aware of It; and had an obligatIon to file her gnevance wIthin the mandatory tIme lirruts, Certainly she subjectIvely knew the process to follow .. ,0::,. if 2 It may very well be that the gnevor was "sick and tired" of the gnevance process, One can appreciate thiS attitude However, such an attitude and position does not elImInate the C A. oblIgations which both parties must meet. The gnevor failed to meet the mandatorY time hmns of wluch she was subJectively aware She "walked away" from the SituatIOn In which she was \ Involved, She reSigned, She qUIt. The matter should be at an end, based upon both the requirements of the C A. and theJunsprudence establIshed before the Board, and tlus Board should have dIsposed oftlus case on the baSIS of the tIme lumt prelImInary ObjectIon, Finally, one must exalTllne ExhibIts 2 and 3, respectively the letter of resignatIOn and the Employer's reply as set out at page 2 of tlus award, In tlus respect, two pOInts must be emphaSiZed, 1 Clearly the gnevor makes reference to her "present sItuatIOn", - wluch obVIously IS part of the reason for the reSignatIOn, and, 2. The gnevor ratses the spectre of "harrassment" wluch she alleges she had ,receIved from both the Employer and WCB, With reference to the first matter the gnevor defimtely Indicates that she has personal reasons for WIslung to reSign, There IS neltherevIdynce nor any IndicatIOn of preCIpItous or emotIOnal actIOn or reactIOn. In fact, the next time any correspondence anses In tlus respect IS a letter to the gnevor's MPP, Denms Dratnville, (Exhibit 13), and to Dr Robert Elgie, Chatrman of the WCB (Exhibit 10) Both letters are dated December 14, 1990 Secondly, tlus Member would stress that the use of the word "harrassment" must not result In extreme and "knee-jerk" responses, That IS, and as would appear to be part of the lustory In tlus case, a query by the Employer as to the JustIficatIOn of a WCB claIm must not be deemed ( automatIcally to be "harrassment" In the context of the harrassment InVestIgatIOns that occur WItlun the OPS The Employer clearly has the nght to question the v,alidlty of a claIm for WCB, .; -,:-- .. "l ~ 3 ( and such a query IS not, of Itself,harrassment as such, In View of all of the above, this case should have been dlsrrussed on the basIs of the prehrrunary objection which was the Issue to be deCided by tills Board as a result of the first day of heanng, With reference to the further prelirrunary o6jectlOn raised by the Employer concerrung the delay in bnngmg forward thIs subject gnevance, tJ:us Member IS m agreement wIth the Board posItIOn. '. 99 ~D1 F T CollIct ~//-o?0-s '- (' ) ) -