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HomeMy WebLinkAboutP-2017-3388.Taylor.18-09-27 Decision Public Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 PSGB# P-2017-3388 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Taylor Complainant - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Brendan Morgan Vice-Chair FOR THE COMPLAINANT Vicky Taylor FOR THE EMPLOYER Jonathan Rabinovitch / Sean White Treasury Board Secretariat Legal Services Branch Counsel HEARING September 5, 2018 - 2 - DECISION A. Background [1] The Complainant, Ms. Vicki Taylor, is employed by the Ministry of Community Safety and Correctional Services (“CSCS” or the “Employer’). This decision deals with her allegation that her Employer’s conduct prevented her from successfully accessing long-term disability benefits by withholding certain documents. [2] The Complainant has at all relevant times been employed at the Employer’s Central East Correctional Centre (“CECC”) in Lindsay, Ontario. [3] On January 30, 2018, the Complainant filed a ‘Form 1 – Application’ alleging that the Employer had “withheld documents requested by the benefits provider”. The Complainant alleged the Employer’s actions had resulted in the insurance carrier denying her certain long-term benefits. [4] The complaint was assigned Board File P-2017-3388. [5] The Employer filed a ‘Form 2 – Response’ with the Board in which it denied the allegations advanced by the Complainant. The Employer further advised the Board that the Complainant had filed a complaint with the Human Rights Tribunal of Ontario (‘HRTO’) with respect to her employment at the CECC. [6] A mediation session was scheduled for May 22, 2018. Prior to the mediation the Complainant filed two additional Form 1 Applications with the Board. These two complaints were assigned Board File Numbers P-2018-0617 and P-2018-0618. [7] At this time it is sufficient to state that these two complaints allege that the Complainant had been harassed and had not been accommodated while at work and that the alleged harassment against her and the Employer’s failure to accommodate had continued subsequent to her taking a leave of absence from the workplace. [8] Given the timing of the Applications the Employer was unable to provide their Form 2 Response prior to the May 22, 2018 mediation session. However, Counsel for the Employer agreed to mediate all three complaints during the mediation. [9] Unfortunately, the parties were unable to resolve any of their outstanding differences at the May, 22, 2018, mediation session. [10] On July 25, 2018, the Board issued a decision addressing all three complaints filed by the Complainant. - 3 - [11] With respect to Board file P-2017-3388 the Board at paragraph 18 directed the parties to engage in an exchange of documents in preparation for a teleconference hearing. [12] The purpose of the teleconference hearing was threefold. Firstly it was to determine what factual disputes remained between the parties and if so could they be resolved based on the information exchanged between the parties prior to the teleconference call. [13] Further, if there were no remaining factual issues in dispute the teleconference was to be used to hear legal and other submission involving the allegation that the Employer withheld certain documents and whether, if proven, the remedies sought by the Complainant should be granted. [14] Finally, the Board indicated that should significant factual disputes remain the Board would establish a process by which these disputes could be resolved. [15] The Board, further, at paragraph 18 set out a time line during which the parties were to identify and exchange the documents that they intended to rely upon during the teleconference hearing. [16] The Board scheduled a teleconference hearing between the parties for September 5, 2018. B. Submissions of the Parties [17] The Complainant was assisted during the teleconference hearing by her representative, Mr. Brian Green. The Employer was represented by Counsels, Mr. Jonathan Rabinovitch and Mr. Sean White. [18] At the commencement of the hearing the parties confirmed the identity and contents of the documents that they had provided to each other and the Board pursuant to the direction set out at paragraph 18 of the Board’s decision of July 25, 2018. [19] The Complainant had forwarded a one-page summary of her position chronicling, in part, issues surrounding her claim for LTIP benefits. She also provided an email exchange between herself and Mr. Doug Houghton who is currently Deputy Director, Northern Region at CSCS. The emails contained in this exchange were dated Friday, August 3, 2018. [20] Finally, the Complainant provided two pieces of correspondence between herself and representatives of Great West Life (‘Great West’), the insurance carrier responsible for the administration of the Long Term Insurance Plan. These were dated July 17 and August 17, 2017. - 4 - [21] For their part the Employer provided documents including email exchanges between the Employer and the Complainant commencing in January 20, 2017 and concluding on August 23, 2017. These email exchanges purported to represent the Employer’s attempt to provide the Complainant with certain forms and documents necessary for her to initiate her claim for long term benefits. [22] The Employer also submitted two pieces of correspondences both dated July 21, 2017 between Great West and the Ministry of Government and Consumer Services (‘MGSC’) and Great West and the Complainant. [23] A copy of an “Employer’s Statement” was included in the Employer’s documents. The “Employer’s Statement” was to be completed by the appropriate governmental representative in the Ministry of Government and Consumer Services and then forwarded to Great West. This particular document was dated September 22, 2017 and issued by Vanessa Franklin a ‘Benefits Assistant’ with the Benefits Operations Unit within the MGSC. [24] Finally, Counsel for the Employer provided a series of email exchanges between individuals in MGSC. These emails were introduced to illustrate the ongoing status of the Complainant’s claim from September 17, 2017 to August 14, 2018. The email exchanges were assembled by Nick Parry, a Benefits Assistant in the MGSC in response to an enquiry from Employer Counsel Sean White. [25] It should be noted that neither party initially objected to any of the documents being entered into evidence. The Complainant, however, did at a later point in the hearing suggest that certain emails and the ‘Employer’s Statement’ may have been fabricated or otherwise altered to support the Employer’s position. She subsequently submitted that the Board should not accept them as “reliable”. [26] The Complainant’s position can be summarized as follows. At all relevant times she was employed as an Operational Manager at the rank of Sergeant in the Employer’s Central East Correctional Centre. In September of 2016 she commenced an absence from her employment. The Complainant submitted that she decided to take the leave of absence because she could no longer tolerate the harassment that she was being subjected to at the workplace. [27] The allegations of harassment and the Employer’s subsequent failure to accommodate the Complainant are the subject matter of complaints filed by her with the Board and described as Board Files P-2018-0617 and P-2018-0618. The particulars of those complaints are not the subject matter of this hearing. [28] Having had a Workers’ Compensation claim previously declined and having discovered that her sick credits were by December of 2016 exhausted the Complainant decided to pursue a claim for LTIP. [29] The Complainant alleged that she initiated her claim in March of 2017. The processing of the original claim was delayed due to ‘processing’ difficulties. It is - 5 - the Complainant’s position that since that initial opening of her file the Employer has failed to cooperate with her in assuring that certain documents are filed with Great West. These documents and forms the Complainant suggests are critical to Great West’s determination as to her eligibility for long term disability benefits. [30] The Complainant stated that the Employer has been “very uncooperative in filing the required documents” and that as a result her claim with Great West is currently described as “Administrative Close” by the carrier. This has left the Complainant without any form of income since the latter months of 2016. [31] The Complainant relied upon two pieces of correspondence between her and representatives of Great West dated July 21 and August 17, 2017 to demonstrate that the responsibility for the delay in processing the claim rested with the Employer. [32] In the July 21, 2017 correspondence the Great West representative acknowledged receipt of the Complainant’s physicians report and also advised that the ‘Employee’s Statement’ was required to be completed and returned. The representative went on to request that the Complainant complete and return the attached forms as soon as possible so that her claim could be processed. The representative added that should these forms not be received by September 26, 2017 the Complainant’s file would be closed. [33] The August 17, 2017 correspondence reminded the Complainant that they had not yet received her completed ‘Employee Statement’ that was attached to the July 21, 2017 correspondence. The representative did advise that the carrier had “followed up with your employer to submit the Employer Statement”. [34] In both the July 21 and August 17, 2017 correspondence the representative provided telephone contacts for the Complainant to contact the insurance carrier should she require assistance with her claim. [35] The Complainant submitted that this correspondence demonstrated that the Employer had not submitted their ‘Employer Statement’ in a timely way. This, she suggested, has resulted in her claim being ultimately denied. [36] An email exchange between Mr. Doug Houghton a former Superintendent at the CECC and the Complainant was also submitted in support of the Complainant’s position. The emails are dated August 3, 2018. [37] The email from the Complainant makes general reference to a conversation that the Complainant alleges took place between herself and Mr. Houghton. The Complainant’s email to Mr. Houghton does refer in part to the Employer’s alleged failure to cooperate with her in attempts to file for LTIP benefits. - 6 - [38] Mr. Houghton’s email did not respond to any of the specific issues raised by the Complainant. He advised the Complainant that he was no longer at the CECC and suggested she contact the current Superintendent, Mr. Kelly Joliceour. [39] The Complainant further submitted that she had “made all efforts” to ensure that those forms that she was responsible for had been completed and provided to Great West Life. However, when asked she declined to acknowledge whether she completed and filed her ‘Employee’s Statement’ with Great West nor would she provide the Board with an explanation as to why she had not completed the form. She could only advise the Board that she had contacted individuals within the Ministry of Government and Consumer Services and Great West Life on a number of occasions to determine the status of her claim but these conversations and messages had not clarified the situation to her satisfaction. [40] In summary, the Complainant suggested that the Board interpret both the July 21 and August 17, 2017 correspondence, the ‘Houghton’ emails and her telephone efforts as proof that while she had made every effort to provide Great West with all the requisite information for her claim the Employer has not fulfilled its obligation to complete all the requisite forms in a timely and accurate manner. [41] The Employer denied all of the allegations raised by the Complainant and submitted that it had complied with the requirements of Great West to provide the necessary completed documents. [42] The Employer further submitted that the actual reason for the denial of the Complainant’s claim was her failure to file certain forms and documents with Great West Life as required by the carrier and the LTIP policy. [43] Counsel for the Employer directed the Board to review the ‘Employer’s Statement’. This is a two-page document generated by the Employer for Great West. It was referred to by Great West in the correspondence between the Complainant and Great West dated August 17, 2017. [44] The ‘Employer’s Statement’ requires certain information and attachments to be provided by the Employer to Great West. This information would appear to be extremely relevant to a claimant’s claim. It is, according to the LTIP policy manual, a necessary requisite for Great West to initiate a claim. [44] In the document submitted to the Board the ‘Employer’s Statement’ appears to have been completed by Ms. Vanessa Franklin of the MGSC on September 22, 2017. As a ‘Benefits Assistant’ within the Ministry’s ‘Benefits Operation Unit’ it is Ms. Franklin’s responsibility to complete all required Employer documents and monitor the status of claims for benefits such as those applied for by the Complainant. In this instance the completed form contains information pertinent to the Complainant’s situation. - 7 - [45] The Employer further submitted email exchanges between Ministry officials with respect to the status of the Complainant’s claim. The emails commenced on September 28, 2017 and concluded on August 14, 2018. [46] In the submission of the Employer the common theme throughout these emails is that the Complainant has failed to provide any documentation, specifically the ‘Employee Statement’. This, the Employer submits, was confirmed by the Employer through an email dated December 8, 2017, in which Ms. Franklin replied to an enquiry from Richard Lavigne of MGSC with the following: “This is the response from GWL Vicki Taylor’s claim was closed as a full claim was never received. We subsequently received the Employer Statement, but the Employee statement still not received. When the Employer statement was received, we sent her a letter on Nov 6/17, advising her that we require full medical support for her claim dating back to Sept. 2016, as it appears she has not RTW since that time. The claim will remain declined until all required information is received.” [47] The Employer submitted that the documents, discussed in paragraphs 45 through 49, above, clearly demonstrated that the Employer had filed those forms and documents that it had a responsibility to complete. Further, it was the Complainant that had not responded as required by both the Ministry and, more importantly, Great West, to the request for documentation in support of her claim. As a result, the Employer requested that her complaint should be dismissed. [48] In response the Complainant challenged the authenticity of the ‘Employer’s Statement’. The Complainant suggested that there was no proof that the document had been completed on September 22, 2017 and therefore the Board should not rely upon it when reviewing all of the evidence. [49] When asked by the Employer to provide evidence that the ‘Employer Statement’ had been altered or otherwise ‘back dated’ the Complainant was unable to provide any evidence to support her allegation. She did not suggest that the email message from Ms. Franklin, described in paragraph 46, above, had been fabricated or that any of the other materials relied upon by the Employer in this matter were compromised. C. Decision [50] Having considered all the materials entered before the Board and having heard the submissions of the parties I do not find that there remain any significant factual disputes that would warrant a further hearing of the complaint. [51] The Complainant has failed, on the balance of probabilities, to successfully support her claim before this Board. This conclusion is based on the documentation and submissions of the Complainant and the documentation and submissions provided by the Employer. The evidence before the Board fails to - 8 - demonstrate any evidence that the Employer has acted in bad faith or negligently towards the Complainant. Further, the apparent failure of the Complainant to file the forms and documents as requested by both the Ministry and Great West would appear to be the reason as to why her claim has not been processed. For these reasons the Complainant’s complaint must be dismissed. [52] The Complainant through her own evidence has been unable to demonstrate that the decision by Great West not to proceed with her claim was attributable in any way to the alleged conduct of the Employer. [53] The two pieces of correspondence from Great West to the Complainant, dated July 21 and August 17, 2017, specifically request that she provide a completed ‘Employee’s Statement’. This is a form that is required by the Great West to initiate a claim. It mirrors the requirement of the Employer to provide an “Employer’s Statement.’ [54] The August 17, 2017 correspondence notes that a delay in the provision of this and any other information could impact the ability of the carrier to provide “timely service”. [55] The Complainant failed to demonstrate that she completed these forms or that the Employer’s conduct somehow prevented her from successfully completing them in a timely fashion. Further, there is no substantive evidence that the Employer was uncooperative in the processing any of the documents that they were responsible for providing in support of her claim. [56] The Employer’s evidence, however, supports its position that the Employer both completed the requisite forms and documents necessary for the claim to proceed and, further, that the Complainant did not submit those documents that which she was required to complete. [57] Finally, the Complainant was unable to offer any substantive reasons as to why she had not complied with the requirement to file certain forms, including the ‘Employee’s Statement’. As the correspondence of July 21, 2017 indicated completion of this form by the Complainant was necessary for Great West to commence the assessment of her claim. When specifically asked during the course of the hearing the Complainant offered no evidence that she had completed the ‘Employee’s Statement’ form or had made efforts to submit it to Great West. She did not provide any evidence that she completed any other form that the insurance carrier or Employer may have required. As the emails supplied by the Employer state, the ‘Employee’s Statement’ remains outstanding as of August 18, 2018. The Complainant did not challenge the accuracy of that email message. - 9 - [58] For all the above reasons, the complaint is hereby dismissed. Dated at Toronto, Ontario this 27th day of September, 2018. “Brendan Morgan” _______________________ Brendan Morgan, Vice-Chair