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Janke v. Ontario Public Service Employees Union, 2006 CanLII 16941 (ON L.R.B.)
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This document: 2006 CanUI 16941 (ON LR.B.)
Citation: .Janke v Ontario Public Service Employees Union, 2006 CanLl116941 (ON l RB)
Date: 200605-12
Docket: 301 0-05-U
[NQteup]
3010-05-U Annette Janke, Applicant v. Ontario Public Service Employees Union and its
Local 459, Responding Party.
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: Annette Janke and Daniel Janke appearing for the applicant; Richard A. Blair, Maria
Wysocki and Eric O'Brien for the responding party.
DECISION OF THE BOARD; May 12,2006
1. This is a complaint filed under s. 96 of the Labour Relations Act, 1995 ("the Act") alleging a
violation of s. 74 of the Act by the responding Union.
2. The issue is whether the Union represented the applicant, Annette Janke, in relation to her
former employer, the Family and Children's Services of Renfrew County and the City of Pembroke ("the
Employer"), in a manner which was arbitrary, discriminatory or in bad faith..
3. The Board issued a previous decision in this matter on January 13, 2006 dismissing a no-
prima facie case motion by the Union.
4. ^ consultation was held on May 12,2006. Ms. Janke, assisted by her husband, Daniel Janke,
explained why she feels aggrieved by the way in which the Union represented her in relation to the
Employer. The Employer had a right to intervene in the application, but chose not to. It was not
represented at the consultation. It therefore provided no alternative view of what occurred with respect to
Ms. Janke. I therefore take what Ms. Janke says of her employment and of the conduct of the Employer
towards her as being accurate.
5. Ms. Janke was hired as an accounting clerk on November 7, 1998, after a shOli period of
temporary work for the Employer. She was happy with her work situation and worked well until a new
non-bargaining unit position, accountant, was created and filled by Kim Carroll in January 2003. Ms.
Janke says that from then on her work environment became stressful and unpleasant. Her supervisor,
Bruce Kennedy, the Supervisor of Finance and Information Services, became increasingly less suppOliivc
and accusatory. Part of Ms. Janke's work was transferred to Ms. Carroll, and this made her feel uneasy.
Ms. Janke's work situation became more stressful to the point that she felt she could no longer work. The
situation was too upsetting for her. She took medical leave on January 28, 2004.
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6. Ms. Janke went to her doctor and she was given a prescription for drugs to deal with her
stress. Mr. Janke delivered the medical note to the Employer with a covering letter which stated, "This
letter is to inform you that my wife, Annette Janke, will be off on sick leave for the next 1.2 months due
to work related stress. Attached is the copy of a note from Dr. Peter W. Galley. Would you please ask
your staff to put her on the appropriate sick leave benefits that she is entitled to." Mr. Janke then gave a
phone number where he could be reached. The doctor's note says, "off work 1-2 months due to work
related stress".
7.
The Employer responded by letter on February 3, 2004 to Ms. Janke. It reads:
This letter acknowledges receipt of a letter advising of your one to two month leave of absence
for work related stress. This office has had no opportunity to discuss what constitutes "work
related" stress with you and in the absence of that opportunity, we are forced to question the
extension of benefits in the circumstances and to require discussion regarding those conditions
of work which might enable a decision regarding your return. I would ask you to contact your
supervisor, Bruce Kennedy, as soon as possible to discuss your letter in person.
The agency is not attempting to further reduce your confidence in your ability to do a job but
wishes to convey our concern about the process used to provide us with notice of a medical
condition. In the absence of necessary further clarification, the agency will seek a legal
opinion regarding the disruption of benefits and the maintenance of employment. Your current
part-time assignment consists of 18 hours a week which we are certainly willing to reduce.
Sincerely,
"Jerry Muldoon"
Local Director
8. Ms. Janke replied to the letter by writing to her supervisor, Mr. Kennedy. She tried to clarify
some of the issues causing her work related stress. Her letter carefully explains her concerns.
9.
The Employer responded by letter on February 16, 2004. It reads:
In response to your February 4th letter, it is necessary to advise you lhallhe agency is nol in a
position to grant stress related sick leave. The references to stress outlined in your letter are
consistent with a normal work environment and certainly do not constitute grounds for sick
leave for an indeterminate period - one to two months. If the conditions in the office do not
suit you, then 1 would suggest that you simply terminate your employment. The working
environment in the finance and information services office is well controlled and certainly the
part-time duties which you perfonn must be completed in that environment.
You left this office with no discussion or advice about working conditions. In my most recent
letter, I asked you to contact Bruce Kennedy to discuss your circumstances. I am not sure what
accommodation you wish the office to make but your letter sets a tone which is associated with
an unwillingness to work within the existing environment.
The office needs to know what you intend to do regarding your return. Your absence at
present is considered unnecessary and it cannot be supported.
Sincerely,
"Jerry Muldoon"
Local Director
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10. The letter is notable for two reasons. Firstly, it denied Ms. Janke her sick leave. Secondly, it
draws quite erroneous conclusions regarding Ms. Janke's letter. The letter does not set a tone "associated
with an unwillingness to working within the existing environment". On the contrary, it shows an
employee willing to work, explaining the difficulties she is experiencing.
11. Ms. Janke felt the letter from the Employer was intimidating. She also felt, quite reasonably
in my view, that she was entitled to receive sick leave benefits. She contacted the Union steward, Edith
Adam Lair. This was the first time she raised an issue with the Union. Ms. Lair came to Ms. Janke's
home where Ms. Janke signed two grievances: one challenging the Employer's denial of sick leave
benefits, the other claiming the letter from the Employer of February 14, 2004 was intimidating.
12.
settlement:
The sick leave benefits grievance has the following statement of grievance and desired
Permanent employee received written notice that self insured sick leave benefits have been
denied. This violates article 25.03 Schedule B as outlined in current collective agreement.
Sick leave benefits to be granted according to contract.
13. The intimidation grievance has the following statement of grievance (the desired settlement
is left blank):
Management in Violation of Article 3.01
Employee while off sick received letter which was intimidating.
14. The grievances were filed shortly after Ms. Janke signed them. In response, the Employer
phoned Ms. Janke and asked her to attend a meeting on Monday, March 1,2004. She attended. Present
were the Union's steward, Ms. Lair, and Mr. Muldoon, the Employer's Local Director. This was not a
grievance meeting. It appears to have been more a meeting to explore the accommodation Ms. Janke
would need on returning to work. During the meeting Mr. Muldoon suggested that Ms. Janke might
consider resigning, if she were not happy in the workplace. Ms. Janke says she made clear she did not
want to quit. According to Ms. Janke, Ms. Lair remained silent. (Ms. Lair was not at the consultation to
answer this). Mr. Muldoon recommended that Ms. Janke meet with Mr. Kennedy that Friday, March 5,
2004. She said she wanted Ms. Lair to accompany her, but Mr. Muldoon said that was not necessary. Ms.
Janke did not pursue the matter and she agreed she would contact Mr. Kennedy to set up a meeting for
March 5.
15. On leaving the meeting with Mr. Muldoon, Ms. Janke met with Ms. Lair in Ms. Lair's office.
Ms. Janke explained she was anxious at the prospect of meeting Mr. Kennedy without Ms. Lair present,
but Ms. Lair explained that it would be alright without her.
16. Ms. Janke went home and thought about her situation. She became increasingly uneasy at the
prospect of meeting Mr. Kennedy by herself. She discussed the situation with her husband and they
agreed that she should resign. Ms. Janke did not discuss this with Ms. Lair. She drafted a letter of
resignation to Mr. Muldoon. It reads:
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Dear Jerry:
Please consider this letter my notice of resignation for the permanent part-time Accounting
Clerk position effective Friday, March 5, 2004.
Sincerely,
"Annette Janke"
17.
She mailed the letter of resignation on the morning of March 5, 2004.
18.
reads:
That afternoon Ms. Janke received a letter, dated March 4, 2004, from the Employer. It
Dear Annette:
This letter follows a recent meeting involving yourself and the union steward concerned with
your return to work. It is expected that you will contact Bruce Kennedy on Friday, March 5th
and meet with him on Monday, March 8th to finalize your return to work. In response to a note
received from a physician, the agency communicated with you regarding our concerns and you
in turn responded suggesting that the stress which you felt was the result of procedures in the
finance office, the reporting relationship and your suggestions about inaccuracies and declining
standard in that office. You were advised in correspondence directed to you by myself that the
agency will not provide short term illness coverage based on our view that a medical condition
has not been established through any external exchange with staff in this office.
At our meeting, you referenced practices in the finance office which you suggested created
personal stress. You made reference to incompetence in the office, rudeness and a sense of
confusion in the office because of duties performed by Kim Carroll. The purpose of your
meeting with Mr. Kennedy is to clarify reporting relationships, expectations regarding
assignments and performance and to assist you to deal with the stresses of a normal accounting
environment. We will be as accommodating as possible and accept at face value your
statement that you are ready to return to the agency.
At this point in time, your absence will be considered a leave without pay and we would
certainly hope to avoid similar circumstances in the future.
Sincerely,
"Jerry Muldoon"
Local Director
19. Ms. Janke did not tell Ms. Lair of her resignation.
20. At the time of writing her letter of resignation Ms. Janke was stressed. She was at home,
demoralized and extremely anxious. She was taking the drugs prescribed to her by her family doctor, but
she did not see him again. She feels, in hindsight, she did not have the capacity at the time to make a
reasonable decision about her employment. She says that over a period of time she gradually got stronger
mentally and recovered from the stress she had felt at work.
21. The next contact between the Union and Ms. Janke was over three months later. In late June
2004 Ms. Lair phoned Ms. Janke to inquire if she still wished to pursue her grievances. If not, she was to
write to the Union requesting that her grievances be dropped.
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22. It is perhaps worth repeating at this point that the two grievances filed by the Union for Ms.
Janke at her request were the grievance concerning the Employer's refusal to pay sick leave benefits and
the grievance concerning the alleged]y intimidating nature of the Emp]oyer's Jetter of February ]4,2004.
23. Ms. Janke made clear that she wanted the Union to pursue the grievances. She wanted justice
and damages. Ms. Janke says that Ms. Lair raised the possibility of Ms. Janke going back to work,
although I am satisfied of the following: Ms. Janke never suggested any reservation regarding her
resignation, she never suggested the Union should challenge her resignation, and Ms. Lair made no
promise to Ms. Janke that the Union would pursue her re-employment.
24. Ms. Lair said the Union would contact Ms. Janke in October 2004. It did not. The process of
referring her two grievances to those within the Union who would take it to arbitration took longer than
expected.
25. On February 15, 2005, a former co-worker of Ms. Janke's phoned her to tell her that Ms.
Carroll, whose presence at work had coincided with Ms. Janke's unhappiness there, had quit. This
information appears to have revived Ms. Janke's interest in getting her job back. She wrote to the Union's
Ottawa office on February 20, 2005, in the following terms:
Dear Sir or Madam:
My name is Annette Janke, and I was recently employed with Family Children's Services of
Renfrew County (Local 459) in the Accounting department, Pembroke office.
My situation is this:
On January 28th, 2004 I went on sick leave for work related stress caused by the employer.
My doctor gave me direction to stay off work until the end of March 2004. My employer
refused to pay for sick leave and sent me letters telling me that there was no stress and my
leave was unnecessary. I informed my local Union and they filed two grievances. One for non
payment of sick leave and the other for harassment.
I loved my job but my immediate supervisor created a very stressful work environment. The
Director had called me to set up a meeting which I attended along with the Union Steward.
The first thing he said to me was: "how about we talk about your resignation." I had intended
to go back to work before my leave had ended. This didn't help me. After the meeting I went
home and decided to give my resignation. This was on March 5th, 2004. I feel that I resigned
under stress which was caused by the employer. The heart of the problem was a supervisor
that created stress, as he tried to give Union work (job duties) to a newly created position of a
non union employee. It has been a year since my grievances were filed.
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My questions are these:
1) Even though I have resigned, will the Union still deal with the grievances?
2) When will I meet with the Union to tell my side of the story?
3) If the arbitrator agrees that the employer was at fault, can I get my job back?
I thank you in advance for answering my questions, and r look forward for someone from the
head Union Office to contact me.
26. This letter is notable because it is the first direct statement by Ms. Janke to the Union that she
felt she resigned under stress caused by the Employer. It is the first time she states explicitly to the Union
that her quit was really a constructive dismissal. Bearing in mind that Ms. Janke resigned on March 5,
2004, this means that a period of nearly a year had elapsed from then before she alerted the Union to this
possibility.
27. In response to this email, Maria Wysocki, the Union's Sector Representative for the Ottawa
Regional Office, contacted Ms. Janke. Ms. Wysocki spoke to Ms. Janke and answered her queries. She
told her that, despite her having resigned, the Union would still pursue her grievances; the Union would
need additional information from her; and there was virtually no prospect of her getting her job back as
relief under the grievances. She explained it was too late at that point, almost a year later, to suggest that
Ms. Janke's quit was really a constructive dismissal.
28. On February 28, 2005 Ms. Wysocki wrote a letter to Ms. Janke explaining that she should
provide what information she had to support the grievances. The information was to be sent to Eric
O'Brien, then the Union's District Grievance Officer. Ms. Janke promptly did so, giving a full account of
what occurred, with supporting documents, on March 5, 2005.
29. By this time it seems that the idea of getting her job back had became Ms. Janke's fervent
hope. She seems, despite the advice Ms. Wysocki had given her, to have begun to believe that this was a
realistic possibility.
30. During the next period leading to the appointment of an arbitrator and the arrangements for
the arbitration to be held on December 13, 2005, Ms. Janke spoke to Mr. O'Brien. He too advised her
that, while the Union would raise the issue of her being re-employed by the Employer, that was not a
possible remedy in the arbitration of the two grievances.
31. The Union explored the possibility of Ms. Janke returning to work with the Employer, but
the suggestion was not accepted by the Employer. It had no interest in re-employing her.
32. At some point late in 2005 Mr. O'Brien phoned Ms. Janke and advised her that the Employer
was willing to settle the grievances on the basis of paying her sick leave for the period of her absence
from work until the date of her resignation. Ms. Janke was not willing to accept this. Mr. O'Brien
considered the matter and come to the conclusion that the proposal was reasonable because it amounted to
a complete capitulation by the Employer on Ms. Janke's sick benefits claim. The proposal did not address
the grievance in which Ms. Janke alleged the Employer's February 14,2004 letter was intimidating. Mr.
O'Brien decided nonetheless to accept the proposal.
33. On November 4,2005 Ms. Wysocki wrote to Ms. Janke explaining that the Union had settled
her grievances:
The hearing for the above-captioned grievances scheduled for December 13,. 2005 has been
adjourned pending finalization of a settlement proposal with the Employer.
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The Employer has agreed to pay to you, less nonnal deductions, a sum equal to your regular
earnings for the period January 28, 2004 through March 5, 2004. This constitutes a complete
victory on this matter.
You also raise in your second grievance that the letter you received from the employer while
on sick leave was intimidating. In that grievance you request no settlement. It is unfortunate
that the Employer's letter had that impact on you.
Almost a year after your resignation, you indicated to me that you want your job back. I had a
lengthy discussion with you about this. Basically, I informed you that we would advance your
sick leave grievance, as I believed we might be able to achieve the settlement requested.
However, I was most clear that getting your job back a year after your resignation was not
remotely likely. Since then, you have had conversations with the Regional Grievance Officer
whose opinion on the matter was also that we would not be successful in getting your job back.
As a result, once I formalize a settlement with the Employer regarding your sick benefits in
2004, I will close the files and cancel the arbitration set for December 13, 2005, as OPSEU
cannot achieve for you the result you ultimately want.
34. This concluded the Union's representation of Ms. Janke. She says it violates her right to fair
representation under s. 74 of the Act.
*****
35. There is no doubt that the Union's settlement ofthe sick pay grievance referred to arbitration
was fair and reasonable. The Union investigated the matter fully, it pursued the grievance to the point of
an arbitration hearing and it reached a most favourable settlement. Ms. Janke was made whole. She was
paid all of her sick leave from the date she went off on stress leave to the date she quit. The absence of a
remedy for the second grievance was not, in my opinion, unreasonable in the circumstances. Ms. Janke
had not asked for a particular remedy when filing the grievance, she was no longer an employee, she was
paid in full on the related grievance, and there is some considerable doubt that an arbitrator would have
concluded the letter was intimidating. Accordingly, I find that the Union did not violate s. 74 of the Act in
settling the grievances as it did.
36. Although Ms. Janke pled her complaint as concerning the two grievances, the issue in
dispute really became apparent only during the consultation, rather than in the pleadings. It involves a
very narrow question: did the Union act arbitrarily towards Ms. Janke by failing to goad her into filing a
grievance, or itself filing a grievance for her, to challenge her quit on March 5, 2005 as an unfair
termination by the Employer? Ms. Janke's real complaint is that, despite her own ostensible behaviour,
the Union should have realized she was so stressed that she could not make a reasonable decision in the
circumstances. The Union should either have advised her to file a discharge grievance, or it should itself
have filed a grievance challenging her quit as an unfair termination. She says Ms. Lair, her steward,
should have known that her quit was not truly voluntary. Ms. Lair should have checked up on her and
asked if she wanted to challenge her quit as a termination. Ms. Janke says she was not in a fit state
mentally, on account of her stress, to act in her own best interests at the time, and that the Union should
have taken a more proactive role by filing a grievance to try to get her job back.
37. As Union counsel argues, Ms. Janke was not misled as to what relief she might be entitled to
at arbitration. On more than one occasion the Union representatives made clear to her that reinstatement
in employment was not a reasonably possibility from the pending arbitration. The Union addressed Ms.
Janke's concerns, explaining to her why she could not hope to be reinstated as part of any remedy on her
grievances. The issue of Ms. Janke's reinstatement in employment was properly raised for the Union only
in February 2005, nearly a year after Ms. Janke's resignation. By this stage, as the Union explained to her,
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it was too late for her to challenge her quit as a constructive dismissal.
38. Union counsel argues, in my view correctly, that, except in the most unusual circumstances
of incapacity, which do not apply here, a union has no obligation to go and seek out a bargaining unit
member to get them to file a grievance. Even if a union has sufficient information to suggest that a
member might have been unjustly discharged, if the member does not themself indicate a desire to pursue
a grievance, the Union has no duty to seek out litigation for that member. As the Board said in Tony
Medeiros, [1986] OLRB Rep. November 1541, at 1549, ~20:
... To hold that a union violates section 68 [now 74] by awaiting some indication
from potential grievors that they wish to complain about their treatment at the hands of
the employer, would be to place an unreasonable burden upon a union. When a union
learns that an employee has suffered employment consequences, but has not sought its
help, though there has been ample opportunity to do so, it cannot be said that the
union acts arbitrarily, or in bad faith, by declining to actively seek out that employee
to advise them of their rights. If, as counsel for the complainants suggested, the union
had a positive duty to seek out and advise the potential grievors of their rights under
the collective agreement given that the union was then aware of the discharges, unions
would be routinely and constantly required to approach employees and explain to
them all their rights and obligations under the collective agreement. A union would be
required to meet, individually or collectively, with all such employees and not only
recite each clause of the collective agreement, but explain to the satisfaction of all
employees what such clauses meant. It simply cannot be sustained that a failure to do
so amounts to arbitrary or bad faith conduct within the meaning of section 68 [now
74] of the Act. If any positive duty does exist, it is the duty of employees who want
union assistance to so request it.
See also Peggy Joe Gasiorek, [1990] O.L.R.B. Rep. Dec. 1272, at 1282, '[59.
39. In this case there is no clear evidence that Ms. Janke was so incapacitated that she could not,
in a timely manner (i.e. within a period of weeks), have clearly conveyed to the Union her desire to
challenge his quit, and to have obtained the necessary supporting medical evidence of her incapacity until
then. Instead, she only consulted her doctor once, when she went on stress leave, and there is no evidence
that her stress was such, even if one accepts she was not fit to understand the implications of her signing
and sending her letter of resignation on March 5, that her incapacity lasted for any significant length of
time beyond then.
40. In this case the Union reasonably perceived that Ms. Janke had decided to quit her
employment. That is why the Union inquired if she still wished her grievances to be pursued to
arbitration. When she said she did, the Union did so. Only almost a year after her quit did Ms. Janke
expressly convey any reservation regarding her quit, and only then did she directly address whether the
Union could try to get her job back for her. By then it was too late for the Union to challenge the quit. It
could ask for an indulgence from the Employer, as it did, but it could no longer challenge the resignation.
41. In all of these circumstances I find there was no violation of s. 74 by the Union. The
complaint is dismissed.
"Christopher J. Albertyn"
for the
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