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HomeMy WebLinkAbout1992-1612.Thomson.93-11-02 ( -- C. . . -~ EMPLOYES DE LA COURONNE ::'..>,_"r ONTARIO .';)' CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE 11111 SETTLEMENT ~ REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG lZ8 FACSIMILE /TELECOPIE (416) 326-1396 1612/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT . Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Thomson) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer ,- BEFORE: S. stewart Vice-Chairperson I Thomson Member F Collict Member \ FOR THE S. Philpott .\ UNION Counsel Koskie & Minsky Barristers & Solicitors FOR THE G Lee EMPLOYER Senior Staff Relations Officer Ministry of Correctional Services ? HEARING June 2l, 1993 ~ - . _.~ . -' . _. ~ .' C' '- .'i' DECISION The grievance before us is dated July 27, 1992 and relates to a claim by Ms A Thomson that the Employer has failed to make reasonable provisions for her health and safety in ) accordance with Article 3 33 of the Collective Agreement. It is alleged that the Employer failed to provide Ms. Thomson with institution issue footwear within a reasonable period of time and that she sustained permanent damage to her feet as a result of carrying out her duties without appropriate footwear. It is the position of the Employer that the grievance was filed outside the mandatory twenty day time limit provided for in Article 27 2.1 of the Collective Agreement and that in accordance with 27 13 the grievance is deemed to be withdrawn It is the position of the Union that the time limits commence running only upon the grievor becoming subject~vely aware that her concern was one that might entail a violation of the I Collective Agreement and that the grievance was filed within twenty days of the grievor being so aware The Board heard evidence and argument only with respect to this preliminary objection. Ms. Thomson is a Correctional Officer and is employed in an unclassified position Ms. Thomson commenced her employment in that position in November, 1989 Her employment \ \ ) - ~ f~- (~~ "",. '" ><- .. was terminated in July, 1990, however she was reinstated pursuant to a decision of this Board and returned to work on April 4, 1991. Ms. Thomson testified that she attended at work a couple of days prior to April 4, 1991 in order to obtain the equipment issued to c9rrectional officers, including steel toed boots There were no boots in her size in stock and she was told that they would be ordered Ms Thomson carried out her duties, which entailed a good deal of walking and standing, wearing her own shoes She , worked twelve hour shifts and worked for a minimum OI forty hours a week. ~s. Thomson testified that she experienced pain and swelling in her .feet. She stated that she made numerous complaints to supervisors about the fact that she had not received her boots and that she was experiencing difficulties with her feet Ms. Thomson sought medical attention from her family physician, Dr. Boyko, on June 25, 1991. She stated that Dr. Boyko's diagnosis was bilateral plantar fascitis and that he advised her to claim workers' compensation benefits. Ms. Thomson made a claim to thk Workers' Compensation Board and Dr Boyko filed a report to the Board in connection with the claim. Ms r Thomson testified that she was initially advised that her claim was allowed, however the WCB advised her by letter dated October 9, 1991 that her claim was denied. Ms. Thomson testified that she did not become aware that the claim had been denied until some time later, as the letter advising her that her claim was denied had been sent to a former address She stated that she 'I .. 0 ~. s I 3 I I I advised the WCB that she wished to appeal the decision, however she was advised some time later that the appeal process could not be initiated by a verbal request and that it was necessary to make a request in writing Ms. Thomson testified that she filed a written appeal within a week of being so advised. Her written request to appeal the decision to the Decision Review Branch of the WCB is dated August 26, 1992. \ Ms Thomson testified that there was initially no lost time from work in connection with her foot injury as she was able to arrange the physiotherapy treatment and steroid shots prescribed by Dr. Boyko on her days off. However, in April, 1992 her condition necessitated surgery and she was off work for six months Ms. Thomson stated that she discussed the matter with the \Union's local president, Mr B. Gillies She was uncertain as to J when she first brought her circumstances to Mr. Gillies' attention. Ms Thomson testified that she asked Mr Gillies if there were grounds for her to file a grievance in connection with her situation and that Mr Gillies advised her that she could not because the matter was being addressed in the WCB claim~ Ms. Thomson's understanding was that she would have to w~it until her claim for workers' compensation b~nefits had been finalized before any grievance under the Collective Agreement could arise Ms Thomson stated that she did not possess a copy of the ( (~^ -' ""."~ "'. , 4 Collective Agreement At that time she was unaware of the provision in the Collective Agreement relating to the Employer's obligation to make reasonable provisions for employees' health and safety. / Ms. Thomson stated that she raised the matter with Mr. Gilles again because her circumstances became pressing, resulting from being off work without compensation Mr. Gilles advised Ms. Thomson to contact a OPSEU staff member, Ms. D Andrusko, to discuss the matter with her Ms Thomson testified that she telephoned Ms., Andrusko on July 4, 1992 and that they arranged to meet on July 20, 1992 Ms Thomson stated that at that meeting Ms. Andrusko advised her that she could claim a violation of Article 3.33 of the Collective Agreement in connection with the ~ circumstances that she faced and that she had twenty days in which to file a grievance Ms Thomson stated that she then spoke with Mr. Gilles again and the grievance at hand, dated July 27, 1992, was filed The relevant provisions of the Collective I Agreement are the following: 27.l It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administra- tion or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the (, ( " >. 5 complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference . 2713 Where a grievance is not processed within the time allowed or has not been processed b~the employee 'or the Union within the time prescribed it shall be deemed to have been withdrawn In support of the Employer's position that the grievance should be deemed to be withdrawn by virtue of Article 27 13, Mr. Lee relied on the following decisions of this Board Graham, 98l/86 (Ratushny), Gembora, 930/89 (Dissanayake) and Mirasol, 1389f90(Knopf). In support of the Union's position Ms. Philpott referred to the following decisions: Ministrv of ../' Correctional Services v. OPSEU (Pierre) ( 1990) 74 O.R. (2d) 700, Gordon, 48/89 (Dissanayake) and Falcioni, 2308/91 (Kaplan) There is one matter to be addressed prior to dealing with the sUbmissions of the parties As previously noted, Ms. Philpott made reference in her sUbmissions to the decision of this Board in_Falcioni, however the copies of that decision that were provided at the hearing were incomplete Accordingly, Ms. Philpott undertook to provide the complete decision to the panel and to Mr. Lee and Mr. Lee was given the opportunity to make sUbmissions in writing with respect to the decision upon its receipt. Mr. Lee elected to make submissions with respect to the decision and did so by letter dated July 6, 1993. By letter ( "l (" .~~ 6 dated July 9, 1993 Ms Philpott submitted that Mr Lee was advanc,ing new arguments that were not previously raised. Ms. Philpott requested that what were characterized as new arguments should be disregarded by the panel or, alternatively, that she be given a further opportunity to make submissions. By letter dated July 19, 1993 Mr Lee took issue with the characterization of his submissions as advancing a new argument In our view, the points raised by Mr Lee cannot properly be characterized as new arguments. Accordingly, the request by Ms Philpott that Mr Lee's submissions be disregarded or that she be given an opportunity to make further submissions is denied In Pierre, the Board dealt with a grievance filed by a Correctional Officer alleging that the Employer had failed to make reasonable provisions for her health and safety in connection with her exposure to tuberculosis. The grievor was advised by her physician that she tested positive in mid- November, 1985. A grievance was not filed until March 4, 1986, following a discussion between the grievor and 'a steward in which, in the words of the Board at p. 7 of Pierre; " [the . . . steward] advised the grievorof her rights under the Collective Agreement and the fact that she should file a grievance ". The ( grievor had discussed the matter with her local Union president some months previously. In the course of that discussion the grievor was advised to see a lawyer I Ms pierre did not ask to { file a grievance and the Union president did not suggest that she I -- ~- --- ,r c~ (<. ,<. .~~1. 7 file a grievance The Union president testified that he did not believe that the matter was grievable The Board rejected the ( I Employer's submission that the grievance was untimely At p. l4 the decision states "What is required on the part of the employee to comply with the mandatory 20 day time limit is ~nowledge or awareness that there has been a violation. or possible violation of the provisions of the Collective Agreement Article,27 2 1 contemplates the knowledge on the part of the employee - a subjective concept." The Board concluded, at p 16 of the decision as follows "The Board finds as a fact that prior to February 25, 1986 the grievor had neither the knowledge nor the belief that her concerns were amenable to resolution under the Collective Agreement ". Accordingly, the Board concluded that the grievance was filed in a ti~ely manner. The matter proceeded to judicial review The Divisional Court's endorsement is dated July l1, 1990, and states as follows: We are all of the view that the Board was correct in its conclusion that the 20-day time period within , which the grievor had to bring her grievance, began to run only when she became aware that she had a complaint that was based on a violation or possible violation of the collective agreement. In our view, the "complaint or difference" referred to in Article 27 2.1 of the collective agreement is the same kind of complaint(s) or difference(s) mentioned in Article 27.l, that is to say a complaint or difference "between the parties arising from the interpretation, application, administration or alleged contravention of this agreement, including any question as to whether a matter is arbitrable". The grievor knew at least by November, 1985 that she was unhappy about a possible exposure to T B , but she was not aware until late February, 1986 that such exposure might constitute a complaint or difference with her employer arising out of a contravention by it of the collective agreement -.-- - ( ( 8 until she became So aware she could not have believed she had such a complaint It is implicit in the reasons of the Board that the grievor first became aware that she had a complaint based on a violation or possible violation of the collective agreement on February 25, 1986 when her union representative told her she could file a grievance. The grievor filed her complaint on March 4, 1986 well within the 20-day time limit for doing so The words "believes" and "becominq aware" found in Article 27.2.1 clearly establish that it is only the subiective awareness of the emplovee that she has a complaint arisinq out of a possible violation of the aqreement that sets the 20-day time limit runninq. [emphasis added] ( Having found the Board was correct in its interpretation of the collective agreement, it is not necessary for us to decide whether this application would also have failed if it could be said that the interpretation placed on the agreement by the Board was not. patently unreasonable The application is dismissed with costs to the Union. \ In Gordon, 48/89, (Dissanayake), the Board considered the effect of the Divisional Court decision in connection with provisions of the LCBO agreement, which the Board found to be of similar effect to the provisions/of the OPSEU agreement that were interpreted by the Court. At p. 15 of that decision the Board states as follows: J As under the OPSEU agreement, the "complaint or difference" referred to in article 27 3(a) (i) must be a complaint or difference under the collective agreement In our view, the "circumstances" giving rise to such a complaint or difference are two fold First, there must be a rig~t under the collective agreement Second, there must be an act or omission by a party to the agreement which the other party feels has abridged or contravened that right Before an employee can be said to have become aware of "the circumstances giving rise to the complaint or difference" under Article 27 . 3 (a) (i), he or she must I be aware of both [emphasis in the original] the existence of a right and a factual basis which may contravene that right c- (' '" 9 In Falcioni, the Board referred to the decision of the Divis~onal Court in pierre and Gordon in concluding that the time limits under the Collective Agreement were not triggered until the employee was specifically advised of her rights under the Collective Agreement. In our view, the decision of the Divisional Court in pierre, supra, compels the conclusion that it is the subjective \ awareness of the employee of a complaint arising out of a possible violation of the Collective Agreement that triggers the commencement of the time limits The decisions of the Board relied on by the Employer that have adopted an approach other than a subjective test to the determination of the commencement of time limits were decided either prior to the decis~on of the Divisional Court in pierre or without specifically addressing the conclusions of the Divisional Court in connection with the language of the Sollective Agreement in issue before us. Decisions in the former category include Graham, supra and Gembora, supra, and in the latter category include .Mirasol, supra There is no dispute that the factual basis giving rise to the grievance before us was known to Ms. Thomson long before the twenty days prior to the filing of the grievance However, after careful consideration of the facts of this case and the submissions/of the representatives of the parties it is our --_._-----~ --~-- ~~---- (..;; r \<: .~ ",.,.. 10 conclusion that until Ms Thomson met with Ms Andrusko she did not have the necessary subjective awareness of her rights under I I the Collective Agreement so as to trigger the commencement of the ! time limits While, as Mr Lee emphasized, there was advertence I to a grievance in the conversation between Ms. Thomson and her union representative some time prior to the filing of the grievance, Ms. Thomson's understanding was that a grievance would r not arise until her claim for workers' compensation had been dealt with. The correctness of this understanding is not the determining matter Rather, it is clear from the decision of the Divisional Court in Pierre that it is the grievor's subjective understanding that is the significant matter We cannot agree with Mr Lee's characterization of the events as a situation where Ms Thomson knew, in the words of Falconi " of the possible existence of a grievance" after her discussion with her . I local president Her subjective understanding at that time was that the existence of a grievance arose after her workers' compensation claim had been finalized The situation at hand \ closely parallels the factual situation before the Board in Pierre. While it differs in that there had been advertence to a grievance ina discussion between the grievor and a Union representative, we are not persuaded that this advertence establishes the necessary subjective knowledge on the part of the grievor It was only after her conversation with Ms Andrusko that Ms Thompson became aware.-of the provision of the Collective Agreement that is alleged to be violated here and was advised ! - - - - ~" - - - ---- -- ~-- ---,.,., ------- -- -"---- (~- (=- . . \ .;:.;1. .) 11 that her circumstances may constitue a violation of this provis~on In accordance with the decision of the Divisional Court in Pierre, it is only at this point that Ms Thomson had the necessary subjective knowledge to trigger the commenc~ment of the time limits in connection with her grievance Accordingly, the preliminary objection of the Employer with respect to timeliness is dismissed A hearing on the merits of the grievance is to be scheduled by the Registrar in consultation with the parties Dated at Toronto, this 2ndday of November , 1993. ) ~~1' S.L.-Stewart, Vice-Chairperson 09:~~ ~ Th son, Member "I Dissent" (dissent attached) I F Collict, Member ( ~ I ,. ~=~ ( , , ~ ~ '" -.::' "" DISSENT RE G S.B #1612/92 (A. THOMSON) This member is not in agreement with the award in this case The reasons for this position are set out below. 1 The jurisprudence is clear that the time limit requirements in Article 2721 are mandatory Both parties are agreed on this matter 2 This Member is in agreement with the Divisional Court ruling concerning PIERRE as related to the circumstances in that case 3 As stated at page 14 in the PIERRE Divisional Court Decision (see p 7 of award) , \ "What is required on the part of the employee to comply with the mandatory 20 day time limit is knowledge or awareness that there has been a violation or possible violation of the provisions of the Collective Agreement. Article 27 2 1 contemplates the knowledge on the part of the employee - a subjective concept." (underscoring added) Hence the issue in this case, is the question as to when the grievor had a subjective understanding that she, in fact, had - as stated in Article 27 2 1 of the Collective Agreement - "a complaint or: difference" with her Employer \ The subject grievance was filed July 27, 1992. It is the position of the Employer that the grievor had a subjective knowledge of the "complaint or difference" as early as the summer of 1991 and certainly, no later than April of 1992. ) - - -- e:- C" -: ~., : ~k ~ 1 2 4 The grievor's evidence in this case was as follows a) The grievor is familiar with the grievance procedure, having only recently been reinstated from a termination pursuant to a decision of this Board, and returning to work April 4, 1991 b) The Employer did not have boots in her size in stock when she returned to work and she was told that they would be ordered For some weeks the grievor performed her duties in her own personal footwear These duties involved considerable walking and standing She complained that her feet were sore and swollen at the end of each shift and that the re,ason for this was the failure of the Employer to issue prop'er footwear normally provided by the Correctional Institution c) The grievor stated in evidence that she complained to members of Management, Messrs. Morgan and Gies (both OM-16's), that her feet were sore because of improper footwear She also stated that she ( complained to Sergeants Smith, Roach, Markell, Evans and Frederericks (all OM-14's) In her own words, the grievor stated, "If I was having a hard time, they knew about it!" All of the above took place some time in June or early July of 1991 d) In Exhibit 3, the nature of the grievor's original WGB claim, dated July 31, 1991, was "progressive" injury to feet from "walking on cement floors, with improper footwear" e) The grievor was quite inexact as to when she first spoke to her Union -------- -- - , r (~ ~. ~''J!~ 3 President, Mr Gillies, about her concerns of the failure by the Employer to issue proper footwear However, it would appear from her evidence ( that it was sometime between August 1991 and April of 1992 The grievor's evidence in this respect was as follows i) i'l asked him (Gillies) at that time if I could file; a grievance" ii) "Gillies told me that until the WCB route is exhausted - we can't use the grievance procedure" iii) "I was asking if I could file a grievance because I could become permanently disabled. I wanted to know what my options were" iv) "Before I had the surgery I spoke to Gillies. He told me to hold off until the process is complete" The Chair even asked for clarification as to whether or not this was the \ first discussion with Gillies ABOUT A GRIEVANCE! The grievor's response to this specific question was as follows "I discussed with him (Giilies) what my options were - what my rights were He told me I could not file a qrievance until the process (WCB) was completed" f) Finally, in re-examination, counsel for the grievor asked her the following question, I \ "In your first discussion with Gilli!3s, what exactly did you say to him about filing a -- ~~- c.~ (' \.t,:.,. -..".;:;.: 4 grievance?" The grievor responded, "I just asked him if I had grounds to file a grievance" g) As a result of a later and second discussion with Mr Gillies after the grievor had had surgery on her feet, she was referred to Doreen Andrusko of OPSEU who told her she should file a grievance on the matter (July 20, 1992) This the grievor did, in a grievance dated July 27,1992 I 5 In view of all of the above, it is the position of this Member that the grievor was subjectively aware that she had a "complaint or .difference" with her Employer concerning the failure to issue her standard f<;>otwear much earlier than the 20 day mandatory time limit prior to July 27,1992, for the following reasons <./ a) In June/July of 1991 the grievor complained to two OM-16's and at least 5 sergeants (OM-14's) that her feet were sore and swollen from improper footwear and that the Employer had failed to issue the standard institutional footwear b) The grievor is familiar with the grievance procedure, having returned to work after a reinstatement frOm a termination pursuant to an order from the G S B as recently as April of 1991 c) Between August 1991 and April 1992 the grievor's evidence was that she approached Union President Gillies to determine if she could file a arievance (see item 4(e) above) d) As this Member understands the evidence, Mr Gillies did not tell the (r t- ,-- - - - 5 grievor> that she could not file a grievance Mr Gillies told her to hold off until the WeB process had been completed ) e) Quite unlike the Divisional Court ruling in Pierre, in this ca~e there ,was an immediate and subiectively known relationship complained of to manaQement by the grievor, relative to her sore feet and the failure of the Employer to issue institutional footwear 6 To paraphrase the Divisional Court ruling in PIERRE, the grievor in this' case had both the knowledqe and the belief that there 'was "a possible violation" of the Collective Agreement. She approached her Union President for guidance on this matter He told her to hold off ( In fact, whether Mr Gillies told the grievor to hold off, or that she could not file a grievance is immaterial The point is that he gave her inaccurate guidance ., in face of the grievor's knowledge of a I"complaint or different" and her request for counsel concerning "a possible violation" of the Collective Agreement. 7 At page 1 0 of this award, the following is stated, "It was only after her conversation with Ms Andrusko that Ms Thomson became aware df the provision of the Collective Agreement that is alleged to be violated here and was advised that her circumstances may constitute a violation of this provision" This may well be true relative to Article 18 1 of the Collective Agreement. However, the Employer must not be held responsible for improper counsel given by a Union President to a Union member who subiectively thouQht there was a possible violation of the collective aqreement (whether Article 18 1 or otherwise), who'sought his counsel about grieving, and was dissuaded from doing so -- ~- - .- ~ , (-- \;'- , -- - . ~ i 6 8 Accordingly, it is the view of this Member that the grievor was subjectively aware of a possible violation of the Collective Agreement prior to April 1992 - ) and as early as the summer of 1991 when she complained to management ! representatives on a number of occasions of the Employer's failure to provide satisfactory standard issue footwear to her, and she also cited "improper footwear" as the reason for the WCB claim, filed July 31, 1991 9 Finally, this case can be readily distinguished from PIERRE where there was a very distant relationship between contracting tuberculosis from an inmate and the much later filing of a grievance, as opposed to this subject case where there was an immediate relationship between the sore and swollen feet of the grievor, and the repeated complaints of the grievor in July/July of 1991 to members of management of the failure of the Employer to provide standard issue footwear Moreover, in PIERRE the Union representative did not believe that Ms Pierre could file a grievance concerning the exposure to. tuberculosis. This Member's understanding of the evidence rn this case is that Mr Gillies (the Union President) told the grievor to wait - to hold off - until the WCB process (case review) had been completed, and this erroneous counsel was given to the grievor after she had taken the initiative to contact him to determine whether or not she should file a grievance Clearly, therefore, in early 1992 the grievorhad a subjective awareness of a possible violation of the Collective Agreement, (as well as in the summer of 1991) 10 The preliminary objection advanced by the Employer concerning the grievor's failure to meet the time limits set out in Article 27 of the Collective Agreement should have .been upheld \ - - ----- -- v~:~~ {~':'~ ! " I 7 ( j , /U-~' ~3 F T COLLI DATE / f \ --<