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HomeMy WebLinkAbout1996-0863.Reeve.00-08-11 Decision ONTARIO EA1PLOYES DE L4 COURONNE CROWN EA1PLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 GSB # 0863/96 OPSEU # 96F413 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Ruth Reeve) Gnevor - and - The Crown III Right of Ontano (Mimstn ofCommumt, and SocIal ServIces) Employer BEFORE Mr Joseph D Carner V Ice Chair FOR THE Michael Klug GRIEVOR Tolpuddle Labour Co-operatIve FOR THE Man Pat Moore EMPLOYER Counsel, Legal ServIces Branch Mimstn of Commumt, and SocIal ServIces HEARING Februan 9 10 15 16 and March 22, 2000 2 AWARD INTRODUCTION On May 23 1996 Ms Ruth Reeve, a Food ServIces Helper then employed at the Southwestern RegIOnal Centre, gneved that she had been Improperly surplussed, The Gnevor had returned to work from SIck leave to perform modIfied dutIes on January 4 1996 Her return to work was approxImately 21 days before both her Short Term DIsabIlIty benefit expIred and her Long Term Income ProtectIOn (L T lP ) benefit mIght have tnggered, that IS, January 25 1996 On the first day of her return to work, members of the employer met WIth her and her umon representatIve to adVIse that her pOSItIOn as Helper Food ServIce was bemg declared surplus effectIve 6 months from January 4th and to dISCUSS WIth her the avaIlable redeployment and retrammg optIOns In effect, the Gnevor was brought back to work and provIded WIth almost SImultaneous notIce of lay-off on January 4 1996 There were a number of prelImmary Issues whIch the partIes WIshed dIsposed of before they addressed the ments of thIS gnevance The first Issue to be dealt WIth was raised by the Employer and that concerned an ObjectIOn to a heanng on the ments of the case smce the gnevance had been filed m an untImely fashIOn, The other two prelImmary matters were raised by the Umon, In the event that the matter was not dIsmIssed as bemg untImely It was the Umon's pOSItIOn that It should be adjourned pendmg a deCISIOn by another tribunal, the Jomt Insurance Benefits CommIttee, that IS, JIBROC to whIch there had been referred a matter related to the ments of the gnevance before me AddItIOnally the Umon sought an order from me that the Issue or subject matter of the case here be consolIdated WIth that before JIBROC and the 3 entIrety referred to that tnbunal for final dISposItIOn, I propose to deal, as dId the partIes, WIth the Employer's motIOn before addressmg the Umon's THE TIMELINESS ISSUE Counsel were agreed that the appropnate collectIve agreement proVISIOns were those embodIed m the publIcatIOn WIth respect to workmg condItIOns etc havmg a green cover and statmg on ItS face to expIre December 31 1993 The relevant proVISIOns of that agreement WIth respect to the tImelIness Issue appear at page 52 and mclude ArtIcles 27 1 through 27 3 1 as follows 271 It is the intent of this 4greement to adjust as quickh as possihle an} complaints or differences between the parties arising from the intelpretation, application, administration or alleged contravention of this 4greement, including am question as to whether a matter is arbitrable 2721 4n emplovee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twent], (20) davs of first hecoming aware of the complaint or difference 272 2 If any complaint or difference is not satisfactorih settled by the supervisor within seven (7) davs of the discussion, it mm he processed within an additional ten (10) davs in the following manner "'T4GE O"v'E 2731 The emplovee may file a grievance in writing with his supervisor The supervisor shall give the grievor his decision in writing within seven (7) days of the suhmission of the grievance SImply put, It was the Employer's pOSItIOn that the gnevance was not filed untIl May 23 1996 whereas the mCIdent arose on January 4 1996 when the Gnevor was proVIded WIth her notIce of surplus or layoff It was the Umon's pOSItIOn that, although Ms Reeve was aware on January 4 1996 that she was bemg surplussed, she dId not then realIze that there mIght have been somethmg Improper or meffectIve m the Employer's actIOn towards her She was not alerted to the pOSSIble Impropnety untIl sometIme after Apnl 8 1996 at whIch tIme she receIved a copy of 4 a letter of that same date from ManulIfe FmancIal to her Employer It was that letter whIch tnggered her concern and whIch led to the filIng of the gnevance Accordmgly tIme lImIts should be measured m relatIOnshIp to the Gnevor's receIpt of that letter rather than m relatIOnshIp to January 4 1996 ThIS IS m keepmg WIth ArtIcle 27 of the collectIve agreement whIch descnbes an entIrely subj ectIve tngger to the ImtIatIOn of a gnevance It was the Gnevor's awareness that she had a complamt rather than the eXIstence of the facts constItutmg a vIOlatIOn of the collectIve agreement from whIch subsequent tIme lImIts must be measured, AddItIOnally It was the Umon's pOSItIOn that I had jUnSdIctIOn under SectIOn 48 of The Labour Relations Act to relIeve agamst the consequences of the tIme lImIts set out m the collectIve agreement. In thIS case, the delay If any was mSIgmficant m terms of the Importance of the subject matter of the dIspute That IS, the Gnevor's layoff Absent sIgmficant prejUdICe to the Employer whIch was not apparent, my jUnSdIctIOn should be exercIsed, In response, It was the Employer's pOSItIOn that the Gnevor had been alerted to the pOSSIbIlIty of an Impropnety WIth respect to her layoff on January 4 1996 by her own steward, Mr Randy Dauphm, ThIS occurred dunng the course of a meetmg between the Gnevor and members of the Company and the Umon to dISCUSS her surplus and redeployment optIOns Accordmgly tIme lImIts should be counted from that earlIer date whIch was almost four months pnor to the filIng of the gnevance Smce there was no good reason for the delay the gnevance ought to be dIsmIssed, AddItIOnally the Employer took the pOSItIOn that I ought not to exerCIse my dIscretIOn to relIeve agamst the tIme lImIts m the collectIve agreement m thIS case The Gnevor was aware of the eXI stence of an all eged 1m propn ety on January 4 1996 In the CIrcumstances, there was no good reason for her delay and the Employer had suffered prejUdICe as a result of the 5 delay At least one wItness who had ongmally been mvolved m the surplus deCISIOn m 1995 and early 1996 was no longer avaIlable WhIle there was VIva voce eVIdence gIven concermng the nature and substance of the meetmg of January 4 1996 as well as subsequent events leadmg to the Gnevor's claim, I do not propose to reVIew those facts m detaIl but only to set out my observatIOns and findmgs as follows 1 I was somewhat concerned that the Gnevor was not entIrely candId m her testImonY' m partIcular she appeared to have a rather convement memory For mstance, she could not recall WIth any clanty comments made by her Umon steward and/or gestures or comments made by herself to hIm dunng the January 4 1996 meetmg, On the other hand, she appeared to recall events mvolvmg her ex-supervISor Mr Brown whIch he was qUIte certam dId not occur If credIbIlIty were central to thIS deCISIOn, I would have had dIfficulty relymg upon the Gnevor's testImony m certam areas 2 The Issue raised by Mr Dauphm, the Steward, m the meetmg related to hIS belIef that the Employer could not layoff an employee who was under medIcal restnctIOns and was not workmg a regular full schedule 3 At the onset of the meetmg Ms Colleen Wilson for the Employer expressed her understandmg that a) The Gnevor would not be qualIfymg for long term dIsabIlIty m any event; b) That her short term dIsabIlIty was runmng out; 6 c) That the only alternatIve for the Gnevor m the near future would be employment msurance, that IS, If she dId not return to work. By returnmg to work as she had done, the Gnevor would now be m a posItIOn to conSIder redeployment and retrammg opportumtIes 4 I am satIsfied that, at the tIme of that meetmg the Gnevor belIeved the advIce provIded by the Employer to be correct, that IS a) her medIcal restnctIOns were such that she would not be elIgIble for L T.I.P b) because of that, even had she remamed off work to the end of her qualIfymg penod, January 25 1996 she stIll would not have qualIfied for L T.I.P c) her short term dIsabIlIty benefit was about to expIre d) her only VIable optIOns were to return to the "modIfied dutIes" offered or to apply for employment msurance e) regardless of her steward's challenge to her surplus notIce, the Gnevor belIeved she had no VIable alternatIve but to return to work and that her consequent deSIgnatIOn as "surplus" was mevItable Her attentIOn was focussed, mstead on her redeployment and retrammg optIOns 7 5 A letter from ManulIfe to the Employer dated Apnl 8 1996 and copIed to the Gnevor changed her VIews The letter of Apnl 8 1996 led the Gnevor to belIeve nghtly or wrongly that she mIght well have qualIfied for long term dIsabIlIty coverage had she not returned to work when she dId, The qualIfymg penod before long term protectIOn could be actIvated was SIX (6) months whIch penod would have expIred on or about January 25 1996 Therefore, although the Employer m partIcular Ms Wilson had expressed the VIew that the Gnevor would not qualIfy for long term protectIOn for medIcal reasons, the Gnevor now belIeved that Ms Wilson had been mIstaken m that VIew and the Gnevor had become the VIctIm of that mIsmformatIOn, Accordmgly but for the Employer's adVIce to the contrary the Gnevor now belIeved that she mIght well have remamed off work on dIsabIlIty so that she would have ultImately qualIfied for long term dIsabIlIty In that event, her layoff or notIce of surplus would have been mappropnate In bnef, but for the Employer's mIsmformatIOn the Gnevor would not have been surplussed on January 4 1996 and mIght well have qualIfied for long term dIsabIlIty shortly thereafter WhIle counsel for the Umon ImplIed that there had been some deliberate mIsrepresentatIOn by the Employer WIth respect to the Gnevor's entItlement to long term dIsabIlIty Ms Wilson who addressed that Issue m the January 4th meetmg was not m any way cross-exammed on the matter as to the source of her mformatIOn and ItS legItImacy Indeed, there was no eVIdence led to suggest that Ms Wilson mIsrepresented m any way the understandmg she had at the tIme WIth respect to the Gnevor's entItlement. WhIle It mIght later be argued that the Apnl 8th letter Itself and subsequent correspondence from the msurer mdIcate that Ms 8 Wilson's mformatIOn was mIstaken, there was no eVIdence as at January 4 1996 that Ms Wilson had erred m any way Lest thIS decIsIOn mIght otherwIse leave a contrary ImpreSSIOn, I have added thIS comment so as to clanfy that there was no eVIdence whatsoever to Impugn Ms Wilson's mtegnty wIth respect to that Issue 6 Regardless of whether or not the posItIOn and VIews of the Gnevor and her counsel expressed m the foregomg outlIne are correct or mcorrect, I am satIsfied that It was the letter of Apnl 8 1996 whIch tnggered the Gnevor's concern that she had been vIctImIzed whether delIberately or madvertently It was then that the penny dropped for the Gnevor and she sought out the aSSIstance of her steward and redress through the gnevance procedure 7 In all of the CIrcumstances, I find that the earlIest date at whIch the collectIve agreement proVISIOns operated was Apnl 8 1996 that IS, the date of the letter whIch tnggered the Gnevor's awareness that she mIght have a claim pursuant to the collectIve agreement. The Gnevor was unable to speCIfy when she receIved that letter but expressed the VIew that she thought It was sometIme near mId or late Apnl Although I have some mIsgIvmgs about her recollectIOn m thIS regard, It IS unnecessary for me to determme the speCIfic date of receIpt. The tngger at the earlIest was the date of the letter that IS, Apnl 8 1996 The gnevance was filed May 23rd That was not much beyond the thIrty-seven (37) days whIch would be entaIled m the first verbal stage of the Gnevance Procedure mcludmg extra days for weekends and holIdays Accordmgly the extenSIOn reqUIred to legItImIze thIS gnevance WIth respect to the proVISIOns of thIS partIcular collectIve 9 agreement would be barely one week m duratIOn, If one takes the Apnl 8th date and adds thIrty-seven (37) days, the tIme frame would otherwIse have expIred at or about May 15th The gnevance was dated May 23rd whIch, takmg mto consIderatIOn an mtervemng weekend, would have been approXImately one week beyond the tIme frame for ImtIal filIng specIfied m the collectIve agreement. In VIew of the nature of the gnevance and ItS Impact on the Gnevor's employment status, an extenSIOn of that duratIOn would not, m my VIew be unreasonable That the elements eXIst m thIS case for the exerCIse of my JunsdIctIOn does not reqUIre a lengthy exammatIOn of the extenSIve Junsprudence on the Issue Rather a cursory reVIew of the prmcIples set out m the leadmg Becker Milk case should suffice In Re Becker Milk Co, Ltd, and Teamster Umon, Local 647 (1978) 19 LAC (2d) 217 (Burkett) ArbItrator Burkett at page 220 IdentIfied three factors relevant to arbItral dIscretIOn to extend tIme lImIts as follows (i) the reason for the delm given hl the offending part], (ii) the length of the delm (iii) the nature of the grievance If the offending party satisfies an arbitrator notwithstanding the delm that it acted with due diligence then if there has he en no prejudice the arhitrator should exercise his discretion in favour of extending the time-limits, If however the offending part], has he en negligent or is otherwise to hlame for the delm either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to ahove in deciding if reasonahle grounds exist for an extension of the time-limits, In the case at hand, although I have some concern regardmg the Gnevor's assertIOn that she dId not receIve the letter untIl mId to late Apnl, I am prepared to gIve her the benefit of the doubt m thIS mstance A delay of one week between the date of a letter and ItS receIpt by the addressee IS not uncommon, That m Itself could account for the delay m the filIng of the gnevance In any event, the delay was very bnef and as noted earlIer the nature of the gnevance IS of suffiCIent 10 Import to JustIfy the exerCIse of my dIscretIOn, As to the Issue of preJudIce, Employer counsel argued that the four year delay between the mCIdent and thIS proceedmg was sIgmficant. Although that assertIOn was correct, counsel was focussmg on the wrong tIme frame The Issue here relates to the delay whIch the Gnevor caused and could control She could not be held responsIble for the delay between the tIme she filed the gnevance and the proceedmg before me Accordmgly I find that there are reasonable grounds to extend the tIme lImIt m thIS case Therefore, It IS my deCISIOn that the tIme lImIt to file the gnevance IS extended and that the matter IS properly before me ADJOURNMENT AND CONSOLIDATION In addItIOn to the gnevance before me, Ms Reeve IS seekmg to confirm her nght and entItlement to long term dIsabIlIty or as the partIes refer to It wIthm theIr collectIve agreement, Long Term Income ProtectIOn (L T lP) Her claim to that benefit had preVIOusly been demed by the msurer ManulIfe however the Gnevor has sought to overturn or appeal that deCISIOn pursuant to speCIfic proVISIOns m the collectIve agreement deSIgned for that very purpose The panel and the process for such appeals IS loosely referred to by the partIes by the acronym "JIBROC" whIch stands for the Jomt Insurance Benefits ReVIew CommIttee It IS the Umon's pOSItIOn presented by Mr Klug that Issues before JIBROC wIll be the same or SImIlar to one or more of the Issues before me More partIcularly Mr Klug suggested that the Gnevor's entItlement to L T.1P wIll be speCIfically before JIBROC AddItIOnally he argued that the gnevance before me also entaIls a determmatIOn as to whether or not the Gnevor was or mIght have been entItled to L T.1P at the tIme she receIved her notIce of surplus, that IS, January 11 4 1996 Smce there IS that sImllanty between the cases and smce JIBROC has been specIfically created and desIgned by the partIes to deal wIth msurance entItlement, I should defer to the jUnSdIctIOn of that body Furthermore, not only should I defer to the jUnSdIctIOn of that tnbunal I should order that thIS gnevance be consolIdated wIth the matter pendmg before JIBROC and allow that tnbunal to deal WIth these mter-related Issues On the other hand, Mr Klug was qUIte speCIfic m advIsmg that he was not requestmg that the matters be consolIdated and heard together before me Rather It was the Umon's pOSItIOn, supported by the Employer that I ought not to consolIdate the matters and assume jUnSdIctIOn myself over the appeal currently pendmg at JIBROC Upon bemg questIOned by the arbItrator to clanfy the Umon's pOSItIOn respectmg the nature and scope of the Issues at hand, Mr Klug responded that It was unnecessary for me to determme the scope of the gnevance at thIS tIme Frankly m prepanng thIS Award, I have had great dIfficulty m acceptmg or adoptmg that VIew Ms Moore, on behalf of the Employer opposed both the adjournment of the ImmedIate case and the Umon's motIOn to consolIdate thIS matter WIth that before JIBROC It was her VIew and submISSIOn that the Issues were unrelated and there was no purpose or need to be served m eIther consolIdatIOn or adjournment of the mstant case In order to clanfy hIS pOSItIOn Mr Klug attempted to charactenze the Issue before me m the followmg manner 1 The Employer's actIOn m provIdmg the Gnevor WIth notIce of surplus or notIce of layoff was Improper smce she qualIfied for L T lP pursuant to ArtIcle 42 of the 12 collectIve agreement as at January 4 1996 In effect, she would have qualIfied for L T.I.P but for the Employer's actIOns 2 The Employer's actIOn m recallIng the Gnevor to modIfied work whIle sImultaneously desIgnatmg her a surplus employee was desIgned to frustrate her nghts to long term mcome protectIOn, 3 In the CIrcumstances, the core of the Gnevor's claim that she was Improperly deSIgnated surplus, hmges upon her nghts to L T I.P pursuant to ArtIcle 42 of the collectIve agreement. Smce that determmatIOn mvolves the applIcatIOn of ArtIcle 42 concermng whIch JIBROC has exclUSIve JunsdIctIOn, thIS arbItrator should defer to a deCISIOn there by adJ ournmg the mstant matter pendmg confirmatIOn of the Gnevor's L T I.P nghts WhIle Mr Klug's argument IS mtngumg, It IS premIsed on the notIOn that the mstant gnevance must entaIl a defimtIve determmatIOn of the Gnevor's L T.I.P nghts, a functIOn reserved to JIBROC At the same tIme, as mdIcated earlIer he suggested that I need not determme the scope of thIS arbItratIOn, That pOSItIOn cannot be correct. If the current matter IS to be adjourned, I must be satIsfied that there IS some common ground between the mstant matter and that before JIBROC WhIle Mr Klug suggested that I need not determme the scope of the current gnevance, he proceeded to explam hIS VIews as to the operatIOn of ArtIcle 42 and ItS Impact on the Gnevor's employment status It IS my VIew that before he can advance that argument, It must be determmed that the current gnevance extended to a conSIderatIOn of the very ments of the 13 Gnevor's L TI.P claim To suggest otherwIse IS to put the cart before the horse Accordmgly the scope of the gnevance before me must be determmed m order to assess common or mter- related matters WIth those whIch mIght come before JIBROC The gnevance here alleged that "I have been Improperly surplussed" It dId not allege that "I have been Improperly demed L TI.P benefits" The gnevance from ItS mceptIOn dId not dIrectly concern or allege that the Gnevor had a valId L TI.P claim There was no eVIdence that the partIes addressed the ultImate valIdIty of the Gnevor's claim or medIcal qualIficatIOns for the L TI.P benefits dunng the course of the gnevance procedure m relatIOnshIp to the matter It was my understandmg from the mceptIOn of thIS matter before me, that the gnevance related to that state of affairs whIch eXIsted as at January 4 1996 At that date, the Gnevor would not and could not have qualIfied for L T I.P because she had not completed the SIX month qualIfymg penod and would not have done so untIl on or about January 25 1996 That was common ground between the partIes Accordmgly any conflIct between the Gnevor's status as an employee on L TI.P and her havmg been provIded WIth notIce of layoff could have ansen at the earlIest on January 25 1996 Rather the Issue at January 4 1996 was whether the partIes mcludmg the Gnevor and the Employer acted under a mIsapprehenSIOn and/or mIsmformatIOn as to the Gnevor's ultImate abIlIty to qualIfy for L TI.P If so the Gnevor was recalled to work and, mdeed, returned to work under that mIsapprehenSIOn thereby exposmg herself and her pOSItIOn to bemg deSIgnated surplus In those CIrcumstances, was It mappropnate for the Employer to make the determmatIOn that the Gnevor's pOSItIOn was surplus smce that determmatIOn mIght have Impacted upon the pOSSIbIlIty of her Immment qualIficatIOn for 14 L T,I.P To put It another way thIS case as ongmally framed was about the valIdIty of the Gnevor's havmg been declared surplus It was not and IS not about the valIdIty of her L T I.P claim Accordmgly It IS my vIew that It IS unnecessary for the purposes of these proceedmgs to determme wIth finalIty whether or not the Gnevor would have had a valId L T I.P claim but for her return to work on January 4 1996 Rather It IS sufficIent for the purposes here to postulate that the Gnevor mIght have had a valId claim to L TI.P as early as January 25 1996 but for the Employer's actIOns The Issue here IS whether or not there was any Impropnety m the Employer's actIOns dIrected at frustratmg the Gnevor's L TI.P nghts or at least resultmg m the frustratmg of those nghts, If any It IS the propnety of the Employer's actIOns whIch IS the subject matter of thIS dIspute not the valIdIty of the Gnevor's claim to L TI.P benefits In the CIrcumstances, I conclude that the Issues whIch mIght reasonably anse wIthm the proceedmgs before me are not SImIlar or the same as those whIch mIght come before JIBROC Furthermore, the determmatIOn here does not rest upon the valIdIty of the Gnevor's claim to L T I.P Therefore, there IS no need for the adjournment of the mstant proceedmgs pendmg the results of the Gnevor's appeal before JIBROC nor IS thIS a case m whIch, as arbItrator I should exerCIse the Gnevance Settlement Board's powers to consolIdate Issues before one tnbunal Havmg conSIdered the representatIOns of the PartIes and the authontIes submItted, I conclude that It would be mappropnate for me to adjourn the mstant matter or to consolIdate thIS gnevance WIth the appeal before JIBROC 15 To summanze my decIsIOn 1 The Employer's motIOn to dIsmIss the matter on the baSIS that the gnevance was filed m an untImely fashIOn IS dIsmIssed, 2 The Umon's motIOn to adjourn thIS matter pendmg the results of the JIBROC appeal and/or to consolIdate thIS matter WIth that appeal IS also dIsmIssed, Dated at Toronto thIS 11th day of August, 2000 Joseph D Carner Vice-Chair