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HomeMy WebLinkAbout1997-2171.Rondeau.00-10-18 Decision o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L "()NTARlO GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB #2171197 OPSEU #98A165 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Emplovees Umon (Rondeau) GIievor - and - The Crown m RIght of Ontano (Mimsm of the SolICItor General and CorrecTIonal ServIces) Employer BEFORE D JD LeIghton Vice ChaIr FOR THE John Brewm GRIEVOR Labour RelaTIons Consultant Rvder Wnght BlaIr & Dovle Barnsters & SolICItors FOR THE Len HatzIs, Counsel EMPLOYER Legal SerVIces Branch Management Board Secretanat HEARING September 6 & 7 2000 DECISION On January 16, 1998 MIchelle Rondeau filed a gnevance allegmg that she had been sexually harassed and dIscnmmated agamst m her workplace between 1991 and 1995 At the outset of the heanng the employer brought a motIon to dIsmIss the gnevance as untImely The umon took the posItIOn that the gnevance should be consIdered tnnely, and that If It IS not, then the tIme lImIts for filmg should be extended pursuant to subsectIOn 48 (16) of the Labour RelatIOns Act. Ms Rondeau worked as a General Nurse 2 at the Sarma Jml between September 1991 and October 24,1995 She testIfied that after about three months of employment m the Jml she expenenced a hostIle workplace, mcludmg bemg threatened and gIven the "cold shoulder" There were pranks played on her The unpleasant work envIronment got worse over the four years Her complamt was chIefly about a co-worker, and member of the bargammg umt, Cathy Coates, who was promoted and became the gnevor's supervIsor Ms Rondeau was extremely upset by statements made by Ms Coates at a umon meetmg on March 25, 1993, remarks predatmg the promotIOn. Ms Rondeau's complamts were first mvestIgated by the employer after she complamed on March 27, 1994 The mvestIgator concluded that there had been no harassment or dIscnmmatIOn agamst Ms Rondeau. ThIs was reported to Ms Rondeau by letter dated October 17, 1994, from Mr J CassIdy, RegIOnal Manager, Western RegIOn. The gnevor was not satIsfied by thIS report and requested a second mveStIgatIOn. The employer asked Mr W B Thomas, RegIOnal Human Resources AdmmIstrator, to reVIew the complamt. On July 7, 1995 Ms P.A Radley, RegIOnal DIrector, Western RegIOn, wrote to Ms Rondeau confirmmg the results of Mr Thomas' reVIew of the matter, whIch had been dIscussed wIth the gnevor at an earlIer meetmg Mr Thomas has concluded that there IS no eVIdence of harassment or dIscnmmatIOn agamst you by your supervIsor Ms Coates Mr Thomas concludes that the nature of the problem IS a personalIty conflIct between you and 2 your supervIsor as well as an apparent dIfference of opmIOn m regards to certam health care procedures The regIOnal drrector also mformed Ms Rondeau of the nght to have her complamt referred to the MmIstry's Independent InveStIgatIOns Umt. She also suggested that Ms Rondeau mIght consult one of the regIOn's workplace harassment advIsors There was no eVIdence provIded as to whether the gnevor pursued thIS advIce An event whIch occurred on October 24, 1995 precIpItated the gnevor leavmg the workplace on short term sIck leave Before leavmg, Ms Rondeau complamed about the occurrence to a member of semor management, Mr J Palmer Several meetmgs between the gnevor and management took place after she left work, m November 1995 and m the spnng of 1996 The employer offered to transfer Ms Rondeau to the Wmdsor Jail, but thIS was not acceptable to the gnevor She testIfied that she could not return to SarnIa Jail because the problem there was not resolved. After her short term, sIck leave expIred, she worked as a nurse m the Umted States From December 1996 untIl June 1999 she worked m MIchIgan at the St. Clarr County Commumty Mental Health Centre Ms Rondeau returned to work at SarnIa Jail m June 1999 Ms Rondeau testIfied m her eVIdence-m-chIef that after the October 1995 mCIdent she dId consult the unIOn about her sItuatIOn. She stated that she was advIsed that the harassment she was suffenng was personal and not because she was a member of a protected group under the Human RIghts Code. In cross-exammatIOn, when asked If the umon said she could not file a gnevance, she acknowledged that she was told It would be futIle to file a gnevance Ms Rondeau also testIfied m cross-exammatIOn that she preferred to seek a "wm- wm" solutIOn wIth the employer through the meetmgs that occurred after she left m 1995 and the spnng of 1996 She also said that she consIdered filmg a gnevance a last resort. She acknowledged that she knew about the gnevance procedure aVailable to bargammg umt employees She had been present at a unIOn meetmg on March 25, 1993 where the Issue of combatmg harassment and pOIsoned workplaces was specIfically addressed. That 3 dISCUSSIOn mcluded usmg the grIevance procedure to seek remedIes and redress for sexual harassment. However, Ms Rondeau had researched the collectIve agreement and concluded that the harassment and dISCrImmatIOn that she was sufferIng was personal- "that It fell through the cracks" and therefore she could not file a grIevance After leavmg the SamIa Jail, m addItIon to attemptmg to work out a solutIOn to her problems wIth the employer, Ms Rondeau sought legal advIce from a lawyer and a paralegal The paralegal advIsed her to sue a co-worker m small claims court for defamatIOn of character, for certam statements made m March 1993 She dId so on July 15,1996 The MmIstry successfully brought a motIon to dIsmIss the SUIt, argumg that the actIOn was not tImely and that the court had no JUrISdIctIOn over a matter arIsmg under a collectIve agreement. Ms Rondeau appealed and on May 25, 1999 the upper court decIded that the employer was correct, and the proper forum for the complamt was arbItratIOn under the collectIve agreement. Ms Rondeau grIeved to recoupe her legal fees for thIS actIon. Ms Rondeau also filed a human rIghts complamt wIth the OntarIo Human RIghts CommIssIOn on August 19, 1997 The substance of thIS complamt IS the same as the grIevance before the board. She alleges that she was harassed between 1991-1995 m the workplace Fmally, Ms Rondeau filed a complamt agamst her umon m May 1999 at the OntarIo Labour RelatIOns Board. In the fall of 1997 Ms Rondeau spoke to Ms Carol Wamer, a umon steward and was advIsed that "It would not hurt" to file a grIevance relatmg to the mCIdents whIch occurred between 1991 and 1995 Ms Rondeau prepared and sent a grIevance to the umon m November 1997 The umon dId not receIve It and Ms Rondeau sent another copy of the grIevance whIch was filed on January 16, 1998 Employer Submission Employer Counsel, Mr HatzIs, argued that the grIevance was untnnely and that I should not exerCIse my dIscretIOn to extend the tIme Mr HatzIs argued that the eVIdence was clear that Ms Rondeau trIggered the grIevance procedure on October 1995 when she 4 complamed to semor management before leavmg the workplace She also negotIated wIth management to achIeve a settlement of her complamt m November 1995 and the sprmg of 1996 She dId not take the gnevance forward formally, prefernng to negotIate dIrectly wIth management to achIeve a settlement. Thus he argued that ArtIcle 27 13 applIes and smce the gnevance was not furthered untIl January 1998, It must be deemed to be wIthdrawn. In the alternatIve, counsel argued that Ms Rondeau was aware of her nghts to file a gnevance m October 1995 She chose not to do so because she preferred to negotIate a settlement wIth management and because she saw the filmg of a gnevance as a last resort. She IS therefore late m filmg some 26 months after the last event, whIch for whIch she IS gnevmg. There IS no eVIdence to support exercIsmg the dIscretIOn under the Labour RelatIOns Act to extend the tIme Counsel for the employer relIed on the followmg cases m support of the submIssIOn. Donwood InstItute and OPSEU, Loc. 541 (1997) 60 L.A C (4th) 367 (Brandt), OPSEU (Alexander) and the MmIstrv of TransportatIOn (1999) G S B #2231/97 (Gray), OLBEU (Pound) v. LIqUor Control Board ofOntano (1995) G S B # 3278/92 (Bnggs), OPSEU (Joly) and the MmIstrv of the SOlICItor General and CorrectIOnal ServIces (1998) G S B # 1009/97 (Brown), OBLEU (WIcken) and LIqUor Control Board ofOntano (1998) G S B #2216/97 (Knopf) Union Submission Counsel for the umon, Mr Brewm, argued that It was not untIl October 30, 1997 that the gnevor became aware of her nghts It was on thIS date that she spoke to the umon about an earlIer gnevance, filed m March 1997, seekmg reImbursement for legal fees mcurred, that Ms Warner advIsed Ms Rondeau that It would "not hurt to file a gnevance" regardmg the mCIdents whIch occurred between 1991 and 1995 Before thIS, It was the gnevor's belIef that her gnevance was a result of harassment and dIscnmmatIOn of a personal nature, for whIch she could not gneve Therefore the gnevor's complamt was only filed SIX weeks after she became aware of her nghts 5 Mr Brewm argued that the delay between October of 1997 and the filmg of the gnevance on January 1998 was not enough to deny the gnevor her nght of heanng The employer had notIce of Ms Rondeau's complamts and there was no eVIdence to support prejUdICe m the delay between October 1997 and January 1998 Fmally, he argued that whIle thIS case was not as senous as a dIscharge case, It mvolves senous allegatIOns of harassment. Therefore, I should exerCIse the dIscretIOn under the Act to extend the tIme lImIt between October 1997 and January 1998, and dIsmIss the employer's motIon. Counsel for the umon submItted the followIDg cases Ontano (MmIstrv of CorrectIOnal ServIces) v. OPSEU (1990) 74 0 R. (2d) 700 (DIV Ct.), OPSEU (PIerre) and the MmIstrv of CorrectIOnal ServIces (1987) G S B # 0492/86 (Venty), OPSEU (Bleach and Ronkal) and th MmIstrv of CorrectIOnal ServIces (1988) G S B # 0020/88 (McCamus), OPSEU (MIrasol) and the MmIstrv of Health (1991) G S B # 1389/90 (Knopf), OPSEU (Trvbus) and the MmIstrv of Natural Resources (1995) G S B # 661/94 et. al (Bnggs), RE Becker MIlk and Teamsters Umon, Loc. 647 (1978) 19 L A.C (2d) 21 7 (Burkett) Decision Counsel agreed that the collectIve agreement between the partIes dated 1992-1993 (the Green Book) applIed m thIS case, because the events m dIspute arose when thIS collectIve agreement was stIll m force Under the Green Book a gnevor must complam to her or hIS supervIsor "wIthm 20 days of first becommg aware of the complamt or dIfference" It IS well establIshed that thIS collectIve agreement calls for a reVIew of the facts whIch exammes when the gnevor actually knew she/he had a complamt. Thus the eVIdence of the gnevor that she/he dId not know, perhaps untIl SIX months after the "event," IS patent eVIdence that thIS IS the pomt when the tIme lImIts under the collectIve agreement begm to run. 6 So the Issue to determme IS when Ms Rondeau knew of her complamt or dIfference wIth management. Havmg carefully consIdered the eVIdence of the gnevor I am convmced that she knew she had a complamt on October 23, 1995 when she went to Mr Palmer before leavmg the workplace However, mstead of filmg a gnevance, she chose to pursue a negotIated settlement wIth the employer, wIthout the assIstance of the umon. She testIfied that she wanted to try to achIeve a "wm-wm" solutIOn. Further, she saw the filmg of a gnevance as a last resort. In a letter, dated May 11, 1997, to the Supenntendent of the SamIa Jml, Mr Robert DIckson, Ms Rondeau wrote as follows I have not before thIS tIme filed a Gnevance, preferrmg to belIeve m the mtegnty and honesty of Management to help resolve the sItuatIon whIch prevents me from workmg at the SamIa Jail I also preferred to use a cooperatIve approach to negotIate a wm-wm solutIOn rather than to use an antagomstIc approach whIch would result m a wm-Iose sItuatIOn. A mutually agreeable resolutIOn has not been found. Please consIder thIS letter stage one of the Gnevance procedure I thank you m advance for your reply whIch I expect wIthm seven days In the submIssIOn of the umon thIS letter was not gnevmg the mCIdents of 1991 to 1995 However, It clearly shows that Ms Rondeau made a conscIOUS decIsIOn not to file a gnevance m October 1995 ThIs findmg IS supported by the eVIdence that Ms Rondeau knew of her general nghts to file a gnevance well before the October 1995 mCIdent occurred. It was the posItIOn of the unIOn that because m October 1995 the umon advIsed Ms Rondeau that her complamt was of "personal" harassment that she was unaware of her nght to file a gnevance But thIS Board has held that It IS not awareness of the legal "nght" but knowledge or awareness of the cIrcumstances of the complamt or dIfference Even when the advIce of the umon has been wrong, as m the W Icken case, where the gnevor was told not to file a gnevance untIl hIS cnmmal case was heard m the courts, the Board stIll found that the delay m filmg meant the gnevance was not tImely InMs Rondeau's case the advIce was merely that It would be futIle to file a gnevance And Ms 7 Rondeau seemed to agree wIth thIS advIce There was no eVIdence to support a findmg that the umon refused to file a gnevance about the events whIch occurred between 1991 and 1995 Further eVIdence that Ms Rondeau knew that she had a complamt on October 24, 1995 IS that she pursued solutIOns before leavmg the workplace, whIch lead to two mveStIgatIOns by management mto her concerns She also pursued solutIOns after she left the workplace when she consulted a lawyer and a paralegal She has pursued lItIgatIOn agamst a fellow employee, the employer and her umon -- all for the alleged harassment between 1991 and 1995 In summary, I am convmced that Ms Rondeau was well aware of the complamt m October 1995 And she knew about the gnevance procedure m the collectIve agreement. I am of the VIew that m part because she belIeved It would be futile to file a gnevance, she vIgorously pursued every other avenue she could. It IS not possible then to reconcIle thIS eVIdence wIth her becommg aware of her gnevance nghts m November 1997 The gnevance IS clearly out of tIme, havmg been filed 26 months after the last event. The delay IS so long that It would not be appropnate to exerCIse the dIscretIOn under subsectIOn 48( 16) of the Labour RelatIOns Act to extend the tIme lImIts There has been no eVIdence to support the exerCIse of the dIscretIOn. The collectIve agreement between the partIes reqUIres a speedy resolutIOn of complamts Umon counsel appropnately conceded m closmg argument that If I found that the tIme began to run when the gnevor left the workplace m October 1995, then the gnevance should be dIsmIssed as untImely I therefore, hereby, dIsmIss the gnevance Dated at Toronto, thIS 18th day of October 2000 - ~ D J D LeIghton, V Ice-Chair 8