HomeMy WebLinkAboutAlfaro 19-05-27
IN THE MATTER OF AN ARBITRATION
BETWEEN:
INTERIM PLACE
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
GRIEVANCE OF D. ALFARO
BEFORE: SUSAN L. STEWART – ARBITRATOR
APPEARANCES:
FOR THE UNION: H. COOK, COUNSEL
FOR THE EMPLOYER: P. RUSAK, COUNSEL
THE HEARING IN THIS MATTER WAS HELD IN TORONTO, ONTARIO,
ON MAY 17, 2019
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AWARD
1. The grievance before me is dated June 6, 2018, and is filed on behalf
of Ms. D. Alfaro. The grievance alleges a breach of Article 4.01, the
management rights provision of the Collective Agreement that includes a
just cause provision. The grievance further states: “I grieve suspension”.
2. It is the position of the Employer that the grievance is untimely and,
accordingly, must be dismissed. In the Employer’s view, the events that
gave rise to the grievance crystallized on April 16, 2018, clearly rendering
the June 6, 2018 grievance untimely. It is the further position of the
Employer that the pursuit of this grievance constitutes an abuse of
process and that the doctrine of issue estoppel should apply to preclude
the grievance from proceeding. The Union takes the position that the
grievance is timely. It contends that the circumstances in this case
involved an evolving series of events, which, at various points, entitled
Ms. Alfaro to file a grievance. In the Union’s view, a June 5, 2018
communication from Ms. Alfaro’s supervisor, advising her that she would
not be covering any shifts until certain events took place was a
development that properly gave rise to Ms. Alfaro’s entitlement to
challenge what was characterized as an indefinite suspension. The
grievance was prepared and dated the next day and was filed with the
Employer on June 7, 2018.
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3. Ms. Alfaro is a relief employee. She has full time employment
elsewhere and she works overnight shifts at Interim Place. An April 13,
2018 email message to her from a supervisor, Ms. Ruiz, advised that one
of her shifts was cancelled, but that a replacement shift would be
provided to her. The message does not provide an explanation for this
development. However, there was a telephone conversation between Ms.
Alfaro and Ms. Ruiz that day in which Ms. Alfaro was advised that
following incidents on her shifts, she would not be assigned to work
alone and she would need to meet with her supervisor to discuss crisis
intervention skills. This conversation was referred to in an email from
Ms. Alfaro to Ms. Ruiz on that date, in which Ms. Alfaro notes that her
name had been removed from another shift and asks if that shift had
been cancelled. She further states: “I have a lot of questions around this
as it appears that I am being punished for working single shifted during
two nights”. It appears that there were two incidents that gave rise to
Employer concerns about Ms. Alfaro’s approach to crisis intervention.
The supervisor responded on April 16, 2018, advising Ms. Alfaro that she
would be unable to work “single staffed” until further notice, but that she
would be able to pick up other shifts. A meeting to discuss a plan “… to
support you with developing strategies to respond to crisis situations
effectively” was requested and times were suggested.
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4. Further correspondence ensued, which included discussion about
replacement shifts and a mutually convenient time to meet. As well, Ms.
Alfaro asked for a further explanation, with Ms. Ruiz responding that it
had been provided. On April 23, Ms. Ruiz noted that Ms. Alfaro’s next
scheduled shift was May 5, 2018, and stated that if a confirmed meeting
was not scheduled by April 26, all of her shifts would be cancelled until a
meeting took place. In a response dated April 24, Ms. Alfaro noted that
there has there had been a change in that she is now being advised that
she is unable to work at all and states: “ … so far I have not been
provided with the reason why I am being suspended and unable to
work”. There were exchanges about meeting times, however progress was
frustrated by the fact that there were two emails sent by Ms. Ruiz that
Ms. Alfaro did not receive and Ms. Ruiz was on vacation for a week at the
end of April. Ultimately, a meeting was scheduled for May 29, 2018, and
it proceeded on that date.
5. Following that meeting, on June 1, 2018, Ms. Ruiz sent Ms. Alfaro an
email advising of training relating to crisis de-escalation, which would
take place on June 16, 2018. By email dated June 4, 2018, Ms. Alfaro
confirmed her willingness to take the training and asked about her
ability to resume taking shifts. Ms. Ruiz responded by email dated June
5, 2018, advising that “other trainings will be booked” and that, after the
completion of additional training, another meeting with the Employer
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would be scheduled. Ms. Ruiz further advised that: “Until then, you will
not be covering any shift”. As previously indicated, the grievance was
dated the next day, June 6, 2018, and was filed on June 7, 2018.
6. There was some dispute as to whether the grievance related to
discipline and accordingly, the applicable strictures of the grievance
process. Article 11.05 of the Collective Agreement provides for the filing
of a grievance at Step 2 of the grievance procedure: “if an employee who
has acquired seniority believes that she has been suspended or
discharged without just cause” within 10 days “after notice has been
given to the employee”. The grievance refers to “suspension” and it is
accordingly clear that it relates to a disciplinary matter and is therefore
appropriately to be filed at Step 2, as it was. There is no dispute that the
clear requirement of the Collective Agreement is that a grievance relating
to discipline be filed within 10 days of the notice being given.
7. In her submissions, Ms. Rusak argued that the 10 day notice period
commenced on April 16, 2018. She noted that on April 13, 2018, Ms.
Alfaro was advised that she would no longer be allowed to work alone,
due to two incidents. She further noted that on that date, Ms. Alfaro
described herself as “being punished”, thereby characterizing the matter
as discipline. On April 16, 2018, the consequence in terms of shifts was
made clear, in her submission, with Ms. Alfaro being specifically advised
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that she would be unable to work single staffed until further notice. This,
Ms. Rusak argued, is the point at which the issue crystallized, with the
10 day time limit commencing on April 16, 2018. Ms. Rusak further
emphasized that on April 24, 2018, Ms. Alfaro specifically acknowledged
that she had been suspended. Ms. Rusak emphasized the importance of
issues being identified in a timely manner, which is reflected in the first
sentence of the second paragraph of Article 10.01, which provides for the
resolution of matters: “as quickly as possible”. Ms. Rusak also
emphasized that Article 10.04 of the Collective Agreement provides that
time limits are mandatory.
8. Ms. Cook noted that as of April 16, 2018, there was no indication that
there would be any financial consequences for Ms. Alfaro in connection
with the Employer’s decision that she would no longer be scheduled to
work alone. As noted at the outset of this award, she characterized the
circumstances as evolving and escalating. While it was acknowledged
that a grievance could have been filed as a result of the events of April
16, 2018, she submitted that a failure to do so did not prevent Ms. Alfaro
from filing a grievance at a later date when the evolving circumstances
changed in a prejudicial way. In her submission, the events of June 5,
2018 reflected a significant change in the status quo. Forbearance, in her
submission, arising in the context of less serious consequences, cannot
compel the conclusion that a significant development that affected Ms.
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Alfaro’s ability to work at all for an uncertain period cannot give rise to a
grievance.
9. The situation before me is unusual. In typical cases of suspension, an
employee is provided with the reason for and duration of a suspension.
With that certain knowledge, an employee is able to assess the
circumstances and determine whether the suspension that was imposed
will be challenged. The circumstances before me are atypical,
commencing with an ability to work double staffed shifts with no
apparent financial consequences, evolving to an inability to staff any
shifts pending a meeting and continuing further, to the point that no
shifts would be scheduled until further events transpired, at an
uncertain date in the future. Ms. Alfaro did, as Ms. Rusak emphasized,
refer to “punishment” and “suspension” well before June 5, 2018.
However, the consequences that were imposed on June 5, 2018, were not
then before her for her assessment and consideration as to whether the
matter would be challenged by the filing of a grievance.
10. This is not a case of continuing consequences of an event that has
fully crystallized in circumstances where both the rationale and penalty
for a disciplinary offence have been provided. I agree with Ms. Rusak
that the prompt identification of issues in dispute is important and the
provisions in this Collective Agreement to that effect are to be respected
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and enforced. However, it is my view that in this instance, events giving
rise to a grievance crystallized on June 5, 2018, with the grievor being
advised that she would be provided with no further shifts pending
further events. The grievance was filed within 10 days of this date and is
therefore timely. Of course, the timing of the grievance has implications
for compensation, should the grievance succeed and should any
compensation ultimately be awarded. I will not address the issue
estoppel and abuse of process arguments raised by Ms. Rusak. Those
submissions relate to circumstances where a grievance is untimely,
circumstances that do not apply in this instance.
11. Accordingly, for the foregoing reasons, the objection to timeliness of
the grievance is rejected. The grievance will proceed on its merits, in the
event that the parties are unable to resolve this dispute.
Dated at Toronto, this 27th day of May, 2019
_____________________
S.L. Stewart - Arbitrator