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HomeMy WebLinkAbout1993-0220.Daneliuk.94-10-14 ~ "Ii --,,~ \ .. ~,. \ ( ONTARIO EMPLOYES DE LA COURONNE. CROWN EMPLOYEES DEL 'ONTARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT . REGLEMENT BOARD DES GRIEFS 180 DUNDAS ,STREET WEST SUITE 2100, TOPONTO, ONTARIO, M5G lZ8 TELEPHONEIT~Li:PHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIOI M5G lZ8 FACSIMILE ITEU=COPIE (416) 326-1396 I i 220/93 .. ! I ! IN THE MATTER OF AN ARBITRATION I i Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT i Before r THE GRIEVANCE SETTLEMENT BOARD i BETWEEN I OPSEU (Daneliuk) Grievor ! - and - , I I The Crown in Right of ontario I (Ministry of Correctional Services) I i I Employer I BEFORE: A Barrett Vice-Chairperson M Lyons Member A. Merritt Member i , I Difrancesco FOR THE C. UNION: Counsel i Gowling, strathy & Henderson i Barristers & Solicitors FOR THE A. Gu1binski EMPLOYER Grievance Administration Officer l Ministry of Correctional Services i HEARING August 31, 1994 I I . " .Jl II - ( ( 1) E CIS ION . \ Th~s decision deals with a preliminary objection brought by il I the empl:oyer to the arbitrability of four grievances il I! On . three .days in November, 1992, Ms Daneliuk, who is a '! correctional officer at Vanier Correctional Centre, filed four Ii grievances, which are reproduced below r Ii 1 November 9, 1992 il St~tement of Grievance I grieve that I'm being harassed co~trary to Collective Agreement il Settlement Desired Full redress. ii II 'I 2 ,i November 9, 1992 ii Statement of Grievance I grieve that my employer viplated the collective agreement by not posting the A I .. . & P pos1t1ons as per collect1ve agreement Settlement Desired: That I be placed in one of those pd:sitions immediately I I 3 ,; November 10, 1992 .1 S~atement of Grievance I grieve that my employer failed to make reasonable provisions for my safety and health dtiring my hours of employment Settlement Desired (1 ) that my employer make reasonable p~ovisions for my safety & health during my hours of work as per Collective Agreement (2) Conflict of interest be removed (3) All loss of monies and credits be reimbursed 'I 4 November ll, 1992 Statement of Grievance I grieve that I am being unjustly and unfairly treated by being removed from assigned work areas abrutly (sic) and not being allowed input to transfers il i! il . " ( ( 2 Settlement Desired That I be treated fairly in regards to area changes II with respect to grievance number 2, the grievor alleged improper posting of Admitting and Discharge positions and requests that she be given one of those positions As a result of a later Grievance S'ettlement Board decision, the employer changed its posting practices with respect to Admitting and Discharge positions In July 1993 the grievor competed for ~nd obtained an Admitting and Discharge position Therefore she has her remedy and the grievance is moot, argues the employer Apparently Ms Daneliuk wants to proceed with the grievance simply to get a declaration that the positions were improperly posted in the past We agree that the grievance is moot and we would not waste the time of this Board hearing about an improper posting practice that has already been corrected with respect to grievance number 4, the removal from an assigned work area occurred in December 1989 and is clearly way beyond the twenty day. time limit for filing a grievance pursuant to Article 27 of the Collective Agreement This cannot in any way be construed as a continuing grievance because Ms Daneliuk is now in the Admitting and Discharge unit, where she is entitled to stay unless she posts out of it Therefore grievance number 4 is also dismissed with respect to grievances 1 and. 3; harassment and health and safety grievances, they are based on the same set of facts with .. / ( ( 3 their genesis. in the December 1989 incident, but are alleged to be continuing grievances, because the situation Ms Daneliuk complains of has not been corrected to her satisfaction Again the employer objects th~t the grievances are rooted in a 1989 incident and should therefore be dismissed for lack of timeliness In the alternative, the employer relies upon the doctrine of laches and asks that the grievances be dismissed due to real prejudice to the employer's case that has arisen as a result of the delay in filing the grievances - As we understand it, the seminal incident which occurred in December 1989 revolved around an ongoing conflict Ms Daneliuk has with another correctional officer, Ms X. In 1989 Ms X was living in a common-law relationship with a management employee at Vanier, Mr Y Ms Daneliuk is all~ged to have told some inmates about this personal relationship contrary to Ministry policy Ms Daneliuk's unit manager learned of this disclosure and told the deputy superintendent about the situation The deputy superintendent interviewed other staff members and inmates on the unit and decided upon an immediate transfer of Ms Danelink out of the unit Ms. Daneliuk has felt aggrieved ever since Her main bone of. contention is that Ms X and Mr Y continue to work in the same institution where Ms X receives preferential treatment in matters of scheduling, work assignments and adherence to rules and regulations, due to her relationship with Mr Y Ms Daneliuk has complained often and openly about this alleged preferential treatment, but she hasn't been able to obtain the remedy she wants, . (, ( 4 which is that one of the couple be "removed" from the institution It is Ministry policy that spouses may work in the same institution as long as one spouse does not supervise the other Apparently it has happened on occasion in the past that Mr Y has been in a supervisory position over his (now) wife. In January 1992 the grievor was working on a unit, under a unit manager M, when she went off work on Workers Compensation benefits When she returned to work on October 15, 1992, she founq that Ms X had been assigned as acting supervisor of the unit on a temporary basis Ms Daneliuk objected strenuously to working under Ms X, but no one in management would rectify the situation Ms Daneliuk became so distraught that she had to be escorted out of the institution She was off work on stress leave from that day until May 1993 By way of remedy for her health and safety and harassment grievances, Ms Daneliuk requests that either Ms X or Mr Y be removed from the institution; $200,000 in damages for pain and suffering, and the difference between the benefits that were provided on short-term and long-term disability and her regular wages, along with the return of her sick credits and vacation credits which were used up, statutory holiday pay, co-payments for drugs and payment for lost overtime opportunities during the period between October 15, 1992 and May 1993 Counsel for the union argues that the harassment and health and safety grievances are continuing grievances, although stemming from the 1989 incident, and are therefore timely in that the . ~ .i ( ( 5 culminating incident on October 15, 1992, led to the filing of the grievances in a timely fashion That is when the grievances crystallized, even though the course of conduct c/omplained of started about three years earlier The' employer aSferts real prejudice in being able to defend against these grievances due to the passage of time The log books kept on the unit in 1989 have been destroyed pursuant to the \ Ministry's retention schedule These would contain important evidence about what was occurring within the inmate population in December 1989 In addition, the unit manager who made the original complaint about Ms Dan~liuk's behaviour has left the Ministry and no one knows where she is Other correctional officers who were on duty at the time have transferred to other institutions, although they would not be difficult to locate The employer asserts that the log books and the evidence of the unit manager would be crucial to its case and it could not receive a fair hearing without that evidence In addition, it would be extremely unlikely that the employer could locate the inmates who were resident in the unit at the time all would have been released years ago and only the recidivists might still be traceable Furthermore, even if all of these witnesses could be found, it is to be expected that memories would fade and be unreliable almost five years after the events in question As particularized, the health and safety and harassment grievances (which are essentially the same grievance) are a . ,p;1 ( ( 6 continuing grievance The events of October 15, 1992 are said to be a triggering event following a three year course of conduct giving rise to the grievances When viewed in that light, the grievances are timely anq may be arbitrated With respect to evidence of long ago incidents, the doctrine of laches may apply If at the hearing of these grievances we find that the employer has been irreparably prejudiced by not being able to produce evidence relating to specific incidents due to the passage of time, we may, in fairness, give little or no weight to the union evidence regarding those incidents We know that the log books are destroyed. The unit manager, Ms Cole, mayor may not be found The employer has made no effort yet to locate he~ and "- ascertain her availability to attend as a witness Nor has the employer attempted to locate any of the inmates in residence in 1989 We are not in a position at this time to determine whether the employer can fairly respond to the allegations of the grievor during the three year period leading up to the filing of t}:le grievances We will have to make evidentiary rulings during the course of the hearing, and finally ascribe weight to what evidence we accept The doctrine of laches is ope which goes to the merits of the case and not to jurisdiction We are not in a position at this time to weigh the equities, but will do so at the hearing One final preliminary objection of the employer should be noted that is with respect to the remedies sought by the grievor We agree that we have no jurisdiction to order punitive damages for ) . :: ~, \':..:. \~ ( ( 7 pain and suffering, nor to order the removal of Ms X or Mr Y, non-parties, from the institution; however we do have jurisdiction to award out-of-pocket claims for damages which arise as a direct result of a breach by the employer of the collective agreement Accordingly there is a remedy available should the grievances be allowed In result, grievances 2 and 4 are dismissed, and grievances 1 and 3 may proceed to a hearing We reserve our decision on the laches issue, which may be raised again at the conclusion of the hearing We ask the registrar to schedule dates for the continuation of the hearing Dated at Toronto this 14tn day of Oct.ober , 1994 ) ~~/y A Barrett, Vice-Chairperson - I t 1\ ') /, / I_~" "I A../ .(.. C. , M Lyons, Member Q tlL.-. 5 )l,..c1--~ A Merritt, Member --