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HomeMy WebLinkAbout1994-2606NORTHOVER96_02_01 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO 11111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARro. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPJE (416) 326-1396 GSB # 2606/94, 291/95 ~ OPSEU # 95B407, 95B751 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Northover) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE W Kaplan Vice-Chairperson FOR THE R Murdock GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE J. smith EMPLOYER Counsel Legal Services Branch Manangement Board Secretariat HEARING January 12, 1996 2 Introduction On December 7, 1994, and then on January 4, 1995, Brad Northover, a long-service member of the OPS currently employed as a Court Clerk by the Ministry of the Attorney General, filed a grievance The grieva nce of December 7, 1994 alleges, among other things, "improper job placement." The January 4, 1995 grievance alleges discrimination because of handicap The case proceeded to a hearing in Toronto at which time the employer raised a preliminary objection taking the position that the December 7, 1994 grievance was untimely and should be dismissed A t the request of the parties, this award will deal only with the preliminary matter in dispute It should be noted, in that regard, that some arguments and evidence were introduced that may eventually go to the merits of this case, namely whether the grievor was properly placed That issue, needless to say, is one that will have to be determined by the panel of the Board that ultimately hears this case The Background Facts To assist the Board the parties entered into evidence an agreed statement of fact. It is not necessary to reproduce that document here Suffice it to say that the grievor, who began work in the OPS in 1977, was injured at work in 1987 Between 1989 and 1993, the grievor participated in a WCB rehabilitation program In September 1993, the grievor was advised, given his inability to perform his preinjury job, that he would be returned to work in a different position One position, an OAG 6 job in a Small Claims Court office, was offered, and the offer was accepted The grievor began work on February 28, 1994 3 According to the grievor, who testified in these proceedings, the job was not for him. This was the first time he had ever worked in the office, and as a former truck driver he did not consider himself suited, by training or temperament, to office work. He could not type, and he had a great deal of difficulty adapting to the office atmosphere and to office routines As his clerical skills were limited, he was predominately assigned to reception duties, photocopying, taking the mail out, answering the telephone and some filing Many Small ClaIms Court clients are extremely demanding, and these demands caused the grievor considerable stress and elevated his already high blood pressure Moreover, the considerable standing hurt his back. In May 1 994, some two months after st~rting work, the gnevor had a stroke He was absent from work until the last week of November 1 994 Within two weeks of his return to work, the December 7, 1994 grievance was filed The grievor testified that he did not file a grievance prior to this date because he was not familiar with the grievance procedure (although he knew such a procedure was in place), had no idea what the job entailed and, in any event, he wanted to give the job a fair chance The Employer's Objection Employer counsel took the position that the December 7, 1 994 grievance was out of time Referring to the time period provisions of the Collective Agreement, counsel argued that this grievance, alleging "improper placement" should have been filed within twenty days of the commencement of the grievor's position While counsel did not take the position that the grievor had any obligation to file a grievance while he was off recuperating from his stroke, the employer was of the view, given the nature of the matter being grieved, that it should have been grieved prior to May 1994 4 Counsel pointed out that the grievor admitted in evidence to being aware of the grievance procedure, even if he may not have been fully familiar with it. Moreover, the grievor was aware early on in the placement that it was not a good match It was at this point, not many months later, in the employer's view, that the grievor should have grieved He had not, and counsel urged the Board to uphold the employer's preliminary objection and find the December 7, 1 994 grievance inarbitrable based on the fact that it was out of time While there was no prejudice to the employer in this case by allowing the grievance to proceed, counsel took the position that administrative inefficiency would result as taking jurisdiction in this case would necessitate the scheduling of several days of hearing The employer also took the position that the essential issues raised in the December grievance also appeared in the January grievance and so no real benefit would accrue by hearing evidence with respect to both grievances Accordingly, counsel argued that there were a number of good reasons for upholding the employer's preliminary objection and declining jurisdiction with respect to the first grievance Union Position In the union's submission, the December 7, 1994 grievance was timely, and counsel argued that timeliness must, in cases of this kind, be assessed in context. And the context in this case was the good faith efforts of the grievor to attempt the new position after many years away from work. Indeed, counsel argued that had the grievor filed the grievance within a matter of weeks, management counsel would have likely come before the Board and argued that the grievance was premature The grievor should hardly be faulted, in the union's view, for making a real effort to perform the new job, and on this basis alone the union argued that the employer's 5 objection should be dismissed and the December 7, 1994 grievance allowed to proceed A number of other arguments were also advanced in support of this submission. Counsel took the position that the cases, a number of which were reviewed, were uniform in holding that it was a grievor's subjective awareness that there was a dispute or difference that started the timeliness clock. The union took the position, in this case, that the grievor's subjective awareness of a dispute or difference did not begin until after the grievor returned from recuperating from his stroke and realized that the job, notwithstanding his best efforts, would not work out. Moreover, union counsel pointed out that +he Board was now empowered by statute to extend time periods where there was good reason to do so, and an absence of substantial prejudice to the other side In the union's submission, the facts established that these statutory grounds for extension had been more than met. Decision Having carefully considered the evidence and arguments of the parties, I am of the view that the grievance is arbitrable and that the employer's prelimmary objection should, therefore, be dismissed The grievor returned to work following a prolonged absence Quite properly, he attempted the one job that was offered to him. Had he declined to do so, the employer would, almost certainly, have taken the position that he was not acting reasonably in the face of management's efforts, consistent with the requirements of the Collective Agreement, to faCilitate his return to the workplace While the grievor knew about the Collective Agreement, and 6 his rights to grieve, I find on the evidence before me that it was not until November 1994, when after giving the job his best shot, that a dispute or difference crystallized for it was only at that point that he concluded that he had been improperly placed Obviously, this award makes no findings about the merits of the grievor's conclusion - all that it determines is that the December 7, 1993 grievance was filed in a timely way In addition, I also find, in any event, that in this case there are reasonable grounds and good reasons for extending the time limits. There IS no question of substantial prejudice to the employer Employer counsel conceded that other than its concerns about administrative efficiency - concerns generally shared by the union and by the Board - there was no prejudice to it in this case Accordingly, and for the foregoing reasons, the employer's preliminary objection is dismissed Both grievances may be scheduled by the Registrar before any panel of the Board at a time and place convenient to the parties. DATED at Toronto this 1st day of February 1996 _i!~! -====__ William Kaplan Vice-Chairperson