HomeMy WebLinkAbout2014-0145. Amos et al.18-10-05 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2014-0145; 2014-0176; 2014-3266; 2014-3734; 2014-4492
UNION# 2014-0586-0034; 2014-0586-0043; 2014-0310-0050; 2014-0308-0012; 2014-0426-
0036
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Amos et al) Union
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The Crown in Right of Ontario
(The Ministry of Children, Community and Social Services) Employer
BEFORE Ian Anderson Arbitrator
FOR THE UNION David Wright
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Felix Lau
Treasury Board Secretariat
Legal Services Branch
Counsel
TELECONFERENCE
September 24, 2018
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Decision
[1] Pursuant to the Directions of the Board dated August 25, 2017, the Union
provided particulars with respect to the five individual grievances it identified as
wishing to advance to arbitration pursuant to paragraph 9(b) of the Memorandum
of Settlement dated January 17, 2017 in the Martin et al matter (the “MOS”). The
Employer filed a response seeking dismissal of each of the five individual
grievances on a preliminary basis. This decision addresses this request.
[2] I note Article 22.16 applies to these matters. The decisions are without prejudice
or precedent and reasons are to be brief.
Grievance of Jeffrey Amos (2014-0145)
[3] The Union stated the following with respect to Mr. Amos:
Mr. Amos has elected not to continue with his grievance and thus no particulars
will be provided.
The Union accepts that his grievance will be deemed to be dismissed.
[4] Accordingly, Mr. Amos’ grievance is dismissed.
Grievances of Shantelle Marcoux (2014-0176) and Guy Paquin Belle-Isle (2014-
4492)
[5] The Union’s particulars in relation to Ms. Marcoux and Mr. Paquin Belle-Isle
commence as follows:
Ms. Marcoux and Mr. Paquin Belle-Isle are both employed as French Language
Services (“FLS”) ODSP caseworkers (“CW’s”).
It is the position of the Union that FLS CW’s perform unique duties and face
unique workload challenges in comparison to CLW’s who provide service in
English, such that the issues raised in the grievances of Ms. Marcoux and Mr.
Paquin Belle-Isle are not materially the same as the issues raised in the Union
grievance and addressed in the Martin et al settlement.
As such, the Union submits that the grievances of Ms. Marcoux and Mr. Paquin
Belle-Isle ought to be permitted to proceed to arbitration.
[6] The Union then provides details as to how the situation of FLS CWs differed from
that of other CWs, including: there was no Program Support Clerk (“PSC”) for the
FLS CWs, which increased their workload; there were only four FLS CWs at the
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office in question (47 Sheppard), with the result that an absence of one or more
of them had a disproportionately greater impact on the others than would be the
case for groups of other CWs, which were larger; and the FLS CWs were
responsible for creating some of their own materials, a function not required of
other CWs.
[7] Paragraph 9 of the MOS states:
The parties agree to the following process for addressing individual or group
grievances from ODSP staff relating to breaches of Article 9, excessive workload
and/or the implementation of SAMS, which have been submitted to the Employer
as of the date of the Memorandum of Settlement:
(a) By no later than May 31, 2017, the Union will provide the Employer with a list
of the grievances, if any, that it wishes to advance for arbitration. Any grievance
not included in the list will be deemed to be withdrawn.
(b) Vice-Chair Ian Anderson will be seized with jurisdiction to deal with the
grievances on the list, and may use such expedited procedures as he deems
appropriate in the circumstances. If Vice-Chair Anderson determines an
individual or group grievance raises materially the same issues as those raised
by the Union grievance and addressed in this Memorandum of Settlement, then
he will dismiss the grievance. The Union agrees that it bears the onus for
establishing that an individual or group grievance is not materially the same.
(c) In making the determination on whether the individual or group grievance is
materially the same, Vice-Chair Anderson may consider the particulars and
grievance forms relating to the eight representative grievers.
(d) Any grievance found to be materially different by Vice-Chair Anderson will
proceed to arbitration, on a without prejudice basis to the Employer's ability to
raise such other applicable preliminary objections.
[Emphasis supplied.]
[8] One of the eight representative grievors relied upon by the Union in the
proceedings which gave rise to the Memorandum of Settlement was a FLS CW
at the 47 Sheppard Ave. office. The particulars filed in relation to that grievor
described the impact of excessive workload and/or the implementation of SAMS
on FLS CWs, and specifically alleged: there was no PSC for the FLS CWs, which
exacerbated their workload issues; there were only four FLS CWs at the office,
with the result that the absence of one of them for any reason meant the others
had to cover that CW’s caseload; and the FLS CWs were responsible for creating
their own letter templates, as none existed in French.
[9] In my view, the issues raised by the grievances of Ms. Marcoux and Mr. Paquin
Belle-Isle are materially the same as those raised by the other FLS CW
grievance. Accordingly, they are addressed by the MOS and the grievances of
Ms. Marcoux and Mr. Paquin Belle-Isle must be and are hereby dismissed.
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Grievance of Cynthia Hayes- Wright (2014-3734)
[10] The particulars filed on behalf of Ms. Hayes-Wright seek to distinguish her
grievance from the matters settled by the MOS on two bases. The first is that in
addition to being a CW herself, Ms. Hayes-Wright was actively involved in the
issues which gave rise to the MOS both as a member of the MERC team and as
Union Steward. As a result: “She routinely had other CWs at her desk crying
and otherwise expressing the problems they were experiencing as a result of
Modernization and the introduction of SAMS.” Further, Ms. Hayes-Wright was a
liaison between the workers and management in her office with respect to the
issues raised by SAMS. This increased her overall workload. The Union asserts
these issues were not addressed by the MOS.
[11] I disagree. Assuming without deciding that stress or workload resulting from
acting as a steward or liaison between workers and management could
constitute a breach of the collective agreement, Ms. Hayes-Wright’s claim is
entirely derivative from the issues addressed by the MOS. It presupposes there
were excessive workloads as a result of SAMS and other actions of management
which she was called upon to address. These are the very issues fully settled by
the MOS.
[12] The second basis on which the Union seeks to distinguish Ms. Hayes-Wright
grievance is that she retired prior to January 17, 2017, the date of signing of the
MOS. The MOS provided certain benefits to those employed as of the date of
signing and committed the Employer to certain prospective actions with respect
to SAMS. Since Ms. Hayes-Wright had retired, she did not obtain any benefit
from the MOS.
[13] I am not persuaded by this argument. The MOS settled all claims and
grievances in relation to SAMS (with exceptions not relevant to Ms. Hayes-Wright
grievance). It did not carve out the grievances of those who had retired.
Accordingly, Ms. Hayes-Wright’s grievance must be and is hereby dismissed.
Grievance of Liliana Erazo (2014-3266)
[14] Mrs. Erazo is employed as a CW. The particulars filed in respect to her
grievance raise three issues, which I find convenient to address in the following
order.
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[15] The first of the issues raised by Mrs. Erazo is the following:
During SAMS training, Mrs. Erazo had an incident with her manager where she
was unaware her manager was trying to reach her by email, because she was at
lunch and then barely made it on time for the SAMS training session, her
manager got very upset and reacted in a way that made Mrs. Erazo feel
intimidated and was told she may face disciplinary consequences. Mrs. Erazo
then approached her Program Manager (her manager’s supervisor) seeking
assistance, but her Program Manager simply told her that issues had to be
worked out with her manager directly. Mrs. Erazo then had to request the
intervention of the union representative to accompany her in all consequent
meetings with her manager. Even though the issue was resolved amicably, it
exacerbated Mrs. Erazo’s medical condition even further.
[16] In my view, even assuming the incident occurred as described, there is no
breach of the collective agreement. One interaction of the sort described does
not constitute bullying or harassment.
[17] The second issue is an allegation that Mrs. Erazo has a medical condition which
has been exacerbated by the stress caused by the excessive workload
pressures. Ultimately, this caused Mrs. Erazo to go off work in March, 2014.
She has not returned to work since. While Mrs. Erazo’s reaction to the excessive
workload pressures was unfortunately more severe than that of most CWs,
subject to my comments below with respect to accommodation, this does not
make her grievance materially different from those which were resolved by the
MOS. The particulars filed by the Union in relation to the eight representative
grievors are replete with references to workload pressures giving rise to stress on
CWs. In some instances, that stress is alleged to have caused or exacerbated
medical conditions. In one instance, the individual was off work for extended
periods of time (up to three months), allegedly as a result. There is no material
difference with respect to Mrs. Erazo’s allegations as to the workload pressures
she experienced from those described for the representative grievors, even if the
impact on her was more severe.
[18] More fundamentally, the Employer can have no liability for Mrs. Erazo’s medical
condition unless it is legally responsible for the actions which in some sense
caused it. Other than with respect to issues related to the duty to accommodate,
the MOS releases the Employer from its legal responsibility for “health and safety
issues arising from the alleged excessive workloads and/or the alleged
detrimental impact from the implementation of ODSP Modernization (2010) and
SAMS” in return for the benefits set out in the MOS. Thus, unless the duty to
accommodate is engaged, the Employer has no further legal liability under the
collective agreement for any exacerbation of Ms. Erazo’s medical condition by
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excessive workload pressures. (Mrs. Erazo may have entitlement to LTIP or
WSIA benefits, but those are other matters entirely.)
[19] The third issue raised by Mrs. Erazo’s particulars is that of accommodation of her
disability. The particulars in relation to Ms. Erazo are almost three pages in
length. At the end, they contain the statement: “Mrs. Erazo did not receive
proper accommodation from the Ministry with respect to her workload and this
has resulted in her being unable to work at all.” The difficulty is that there are no
particulars in support of this conclusion. On the contrary, to the extent the
particulars specifically refer to medically supported accommodation requests by
Ms. Erazo, they indicate the Employer complied with those requests.
[20] If the Union asserts there were specific requests by Ms. Erazo for
accommodation of her disability with which the Employer failed to comply, it is
directed to provide full further particulars by November 30, 2018. In the absence
of such particulars, Ms. Erazo’s grievance will be dismissed in its entirety, as it
may be after consideration of any such particulars provided.
Dated at Toronto, Ontario this 5th day of October, 2018.
“Ian Anderson”
Ian Anderson, Arbitrator