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HomeMy WebLinkAboutUnion 19-06-28IN THE MATTER OF AN ARBITRATION BETWEEN WAYPOINT CENTRE FOR MENTAL HEALTH CARE (“Employer”) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“Union”) Grievance of Glenys Parent SOLE ARBITRATOR: James Hayes APPEARANCES For the Union Mae J. Nam, Counsel Ron LePage Peter Sheehan For the Employer Allison MacIsaac, Counsel Jonathan Kytayko Hearings were held in Barrie, Ontario on April 5 and June 24, 2019. 2 AWARD 1. This decision addresses a preliminary objection raised by the Employer that the Grievance is untimely. 2. Ms. Parent grieved on February 24, 2017 alleging that she “had not progressed through the pay grid according to my classification”. She seeks compensation retroactive to 2010 when her then ‘Nursing 2 nursing education’ classification was placed in the ‘Education Consultant’ classification. 3. The objection succeeds. Facts 4. The matter was tried on the basis of an Agreed Statement of Fact supplemented by evidence from the Grievor and three other witnesses. 5. The relevant facts may be summarized succinctly. 6. Ms. Parent is a Registered Nurse whose continuous service with the Employer ran from June 10, 1985 until her retirement on February 21, 2018. 7. On October 23, 2006, the Grievor was permanently accommodated from her home position of Nurse 2 General into the Nurse 1, Nursing Education position within the Learning Resource Group, providing her with an increase in pay. 8. On July 16, 2007 the Grievor’s position was assessed to a higher classification on Nurse 2 Educator resulting in another pay increase. She remained in the Learning Resource Group. 3 9. As of 2008, the Grievor held the position of Nurse 2 nursing education. She remained in the Learning Resource Group with the job title of ‘Coordinator – Medical Emergency Education’. 10. On October 8, 2008, the Grievor received a letter from the Employer advising her that the government had given formal approval of its divestment to a public hospital corporation. In the letter, the Employer stated: I appreciate that change such as this raises many questions about what it will mean for you and your employment status. Effective on the date the current MHCP is transferred to the newly-formed public hospital MHCP (the “Change- Over Date”), your employment will continue at your present work location in your position of Medical Emergency Co-ordinator at a salary of $79,525 classified at Nurse 2, Nursing Education. You will continue to receive any salary allowances to which you are entitled to under your collective agreement. Your severance credit date is October 7, 1985 and your continuous service date is June 10, 1985. Your hours of work will remain unchanged. 11. On October 23, 2008, the Grievor sent an e-mail seeking clarification. It read in its entirety: I would like to clarify my job title and rate of pay. My job title is actually Coordinator of Medical Emergency Education rather than Medical Emergency Coordinator as stated in my letter. It may not make a difference because my classification title is correct in the letter but I just wanted to be certain. 12. In December 2008 the divestiture occurred. As a result OPSEU began negotiations for a renewal collective agreement. 13. On or about January 13, 2010 the parties reached agreement on all provisions for the renewal collective agreement with a term of January 1, 2009 until March 31, 2011. 14. Notably, the parties agreed that the previous OPS classifications would be collapsed from an OPS model to a Hospital industry model. 4 15. Of particular relevance to the Grievance at issue, the parties agreed that the former Nursing 2 nursing education classification would become either the ‘Education Consultant’ classification or the ‘Clinical Nurse Educator’ depending on whether a position was clinical in nature or not. 16. During bargaining, the parties agreed that individuals in certain affected classifications, including Ms. Parent, would receive a $2,000 signing bonus. 17. After the Memorandum of Settlement was signed, the Union issued a news release to its members containing the agreed-upon terms and referencing the $2,000 signing bonus for the Education Consultant classification. 18. The Grievor received her $2,000 signing bonus on the January 11-24, 2010 pay period. 19. In 2012 the Employer re-evaluated the Grievor’s position changing her title to Therapeutic Interventions Training Coordinator. The position remained in the Education Consultant classification. 20. In 2015, Ms. Parent requested that the Employer provide her with a confirmation of employment letter. That letter confirmed that she was employed as an Education Consultant. 21. The Grievor testified that in March 2016 she had various conversations with co-workers that led her to discuss her rate of pay. She was surprised to learn that they were receiving the same pay as her although they were not Registered Nurses. She had not been aware that they were all classified as Educational Consultants. She had only previously taken notice that her position title had been altered from time to time over the years. 5 22. On March 21, 2016, Ms. Parent sent an e-mail to her manager that read in its entirety: Hello Steve. As agreed this morning I am asking that you follow up with our discussion regarding the fact that I am not being paid as an RN in light of the following facts: I was paid as an RN when I was originally hired for this position and haven’t been notified of a demotion in pay. My job continues to require RN qualifications. The clinical nature of my responsibilities has recently been considered and discussed as not fitting into the OD department. 23. A Step 1 response was received from the Grievor’s manager Steve Whittington on October 12, 2016. Further discussions between the Employer and the Union took place on January 17 and February 8, 2017. 24. By letter dated March 24, 2017 the Employer responded at Step 2 to the Grievance. The letter included the following: It is clear that by November of 2012 you were in a job classified as an Educational Consultant and I find it difficult to accept that you were unaware of this until 2016. Consequently, the Hospital will be raising a preliminary objection under Article 8.03 of the Collective Agreement should you refer your grievance to Arbitration. 25. Ms. Parent testified that she had limited personal understanding of the stages of the grievance process, learned from “hearsay from co-workers”. She did not see certain documents produced by the Employer at the time but did receive the letter dated October 8, 2008. She believes she saw the Union newsletter about the 2010 MOS but understood the signing bonus to be related to the reduction in weekly working hours not to a classification change. Subsequent performance evaluations did not reference the Educational Consultant classification. She did not recall seeing the Revision document dated November 9, 2012 with its reference to the Therapeutic Interventions Training Coordinator position in the Education Consultant classification. She was unsure as to whether she saw the August 11, 6 2015 confirmation of employment letter where she was said to be “employed as a Education Consultant”. Employer position 26. Article 15.17 of the Collective Agreement states expressly that time limits are “mandatory”. There are no grounds for an arbitrator to relieve against this obligation pursuant to ss. 48(16) of the OLRA. 27. Having regard to the factors identified in such cases as OPSEU (Poblete) 2019 CarswellOnt 3128, the purported unfamiliarity of the Grievor with the grievance procedure is unpersuasive. The 7-year delay in filing the Grievance is virtually unprecedented. Memories have faded. Documents are now unavailable. People have either passed away or left the Employer. The Grievance at issue is a classification grievance not a termination. The Employer had no inkling that there was a dispute at all for 6 years. Only the Grievor was responsible for the delay. Union position 28. Ms. Nam submits that discretionary relief should be granted pursuant to ss. 48(16) of the Labour Relations Act to address any untimely aspect of the matter. In the alternative, the Grievance should be identified as a continuing grievance within the meaning of the jurisprudence. 29. The Union argues that the Grievor was not “directly notified” in 2010 that her classification had been changed by the MOS nor did the Union’s press release communicate that this had happened. In her mind she continued clinical work as before. When she learned that, in effect, she had been “demoted”, this came as a complete shock and she raised her objection promptly with her manager. 7 30. The Union referred to the following authorities: Chrysler Canada Limited [1999] O.L.R.B. Rep. 757; OPSEU (Stone), 2001 CanLII 25773 (ON GSB); OPSEU (Union Grievance), 2002 CanLII 45745 (ON GSB); Health Employers’ Association of British Columbia (2008), 180 L.A.C. (4th) 266 (Taylor); Religious Hospitallers of St. Joseph of Hotel Dieu of Kingston (1992), 29 L.A.C. (4th) 326 (Stewart); Ontario Council of Regents 1996 CarswellOnt 6922 (Simmons). Ms. Nam stressed that, while a classification grievance, the Grievance was very important in that her rate of pay was fundamental to the pension entitlement that she was now receiving as a retiree. She was unaware for a lengthy period that there had been a breach and acted immediately once she was informed. She had no prior cause to believe that she had been paid improperly. Furthermore, the Grievance raises an issue that should be seen as constituting a “continuing grievance”; that is, every time Ms. Parent’s pay cheque was short. The facts here more closely resembled Hotel Dieu and Council of Regents than the Woodgreen case relied upon by the Employer. Discussion and disposition 31. As I mentioned during final argument, no aspect of my determination turns upon any negative assessment of the credibility of any witness, including Ms. Parent. In my judgment the Grievor testified honestly and fairly. To the extent that there was a difference between Mr. Kytayko and the Union witnesses concerning ‘time limits practice’, I do not find it necessary to draw any legal conclusions for purposes of this Award. Suffice it to say that the Union is now squarely on notice that the Employer expects that time limits will be observed absent mutual agreement as permitted in the Collective Agreement. It is to be hoped that the constructive, sometimes informal, dialogue that has taken place with both Mr. LePage and Mr. Sheehan will continue in the future. 32. The Union had a difficult case to make here. The Collective Agreement provides that any complaint should first be raised with an immediate supervisor 8 within 30 days “after the circumstances giving rise to it have occurred or ought reasonably to have come to the attention of the employee”. 33. The Grievor is a Registered Nurse. She presented as a thoughtful intelligent person. While the case did not reach the merits, I have no doubt that she honestly believes that her clinical work was not sufficiently credited when her position was placed in the Education Consultant classification. However, Ms. Parent was placed in the Education Consultant classification on April 5, 2010 and every biweekly pay cheque thereafter reflected this change. The job evaluation that occurred in November 2012 identified her position as Therapeutic Interventions Training Coordinator but the position remained in the Education Consultant classification. The first complaint raised by the Grievor was in 2016 with the Grievance filed on February 24, 2017. There has been no explanation provided for the lengthy delay apart from the fact that she became aware of the issue following discussions with co-workers in 2016. 34. With great respect, I can only conclude that, at very least, the Grievor ought to have known of the concern long before 2016. When the exercise of ss. 48(16) discretion is sought to relieve against time limits, absent exceptional circumstances, such delay should be measured in days, weeks, or months but not years. I appreciate that the outcome here will be disappointing to the Grievor from a pension point of view. However, given the lapse of time from 2010 and 2012 when her classification was reviewed, prejudice to the Employer may be assumed without formal proof. In any event, Ms. MacIsaac has raised concerns about documents and witnesses that are no longer available. 35. I have considered the authorities reviewed by both counsel but there is no need here to go over yet again ground that has been well-travelled by many arbitrators. The facts here do not disclose a continuing grievance. There was a singular decision in 2010, confirmed in 2012, relating to reclassification of the Grievor and others as Education Consultants with foreseeable continuing 9 consequences. See: Woodgreen Community Services, 2018 CarswellOnt 1105 (Hayes); Re Province of British Columbia (1982), 5 L.A.C. (3d) 404 (Getz) at paras. 34-35. 36. The Grievance is dismissed as untimely. Dated at Toronto, Ontario this 28th day of June, 2019. James Hayes